Category: reason

Klobuchar’s Tough-on-Crime Past Finally Comes Back to Bite Her

Klobuchar’s prosecutorial past comes back to bite her (finally). But first: It’s Biden vs. Bernie again ahead of tomorrow’s Super Tuesday primaries. Former Vice President Biden took nearly half (48 percent) of the Democratic presidential primary votes in South Carolina, with Sen. Bernie Sanders (I–Vt.) earning 20 percent and former South Bend Mayor Pete Buttigieg getting just 8 percent.

Buttigieg dropped out of the race on Sunday. Businessman Tom Steyer also ended his campaign over the weekend, after getting just 11 percent of the South Carolina vote.

Sen. Elizabeth Warren (D–Mass.) placed fifth in South Carolina, with just 7 percent of the vote, trailed by Sen. Amy Klobuchar (D–Minn.) with 3 percent and Rep. Tulsi Gabbard (D–Hawaii) with 1 percent. Former New York Mayor Michael Bloomberg wasn’t on the ballot.

Both Bloomberg and Klobuchar faced protests over the weekend, forcing Klobuchar to cancel her Sunday night campaign rally at a high school in Minnesota’s St. Louis Park.

Black Lives Matter protesters were there to call out Klobuchar for the incarceration of Myon Burrell, who as a 16-year-old was convicted of murder and sentenced to life in prison. Burrell maintains his innocence, and evidence suggests he may have been wrongfully convicted in the death of 11-year-old Tyesha Edwards, who was killed by a stray bullet in 2002.

“Sen. Klobuchar was the county attorney during Burrell’s first trial,” notes WCCO. And while campaigning for president, Klobuchar has repeatedly cited the story of how she helped put Burrell away.

The Klobuchar campaign released a statement saying that “the campaign offered a meeting with the Senator” if the protesters would leave. “After the group initially agreed, they backed out of the agreement and we are cancelling the event.”

In Alabama, protesters took a much different tack, silently standing and turning their backs toward Bloomberg as he spoke at a Selma church.

The Montgomery Advertiser reports:

Bloomberg was invited to speak during Selma’s Jubilee, an annual event marking “Bloody Sunday” when hundreds of protesters were beaten and battered while marching across the Edmund Pettus Bridge in 1965.

Ryan Haygood, who turned his back on Bloomberg, told the paper:

I was sitting there really wrestling with the fact that 55 years ago 600 or more people assembled at this church and they prayed and prepared to be brutalized by Alabama state troopers about a half a mile up the bridge. Then comes Michael Bloomberg who when he was the mayor of New York City presided over those very kinds of police brutality practices and policies. So in my mind, I thought, though I was surprised to see him come through the doors, I thought he would use this space to atone for that….

And not only did he not do that, it was clear to me that he wasn’t even going to address the issue at all. And so I wrestled with it. So I felt like I had to do something to acknowledge that that’s not OK especially in this sacred space. This is a space that changed the world.

According to the Advertiser, around a dozen people “stood for about 30 seconds before Bloomberg realized what was happening. He paused, then stumbled over his words before picking back up with his speech”

Voters in 14 states and American Samoa will go to the polls tomorrow, with 1,357 delegates up for grabs. (To win the nomination, you need 1,991 delegates.) The states holding primaries will be Alabama, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.

QUICK HITS

  • The Trump administration is expanding a coronavirus-related travel ban “to include any foreign national who has visited Iran within the last 14 days,” Vice President Mike Pence said on Sunday. “The US is also increasing the travel advisory for Italy and South Korea to Level 4—the highest level—advising Americans not to travel to specific regions in those countries hit hardest by the virus,” reports CNN.
  • Two people in Washington state have died from the coronavirus. Ten cases have been confirmed there, all around the Seattle area in King County.
  • Yes, “2016 was the worst election ever,” writes Jonathan V. Last at The Bulwark. But what if “every subsequent election is worse?”

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Klobuchar’s Tough-on-Crime Past Finally Comes Back to Bite Her

Klobuchar’s prosecutorial past comes back to bite her (finally). But first: It’s Biden vs. Bernie again ahead of tomorrow’s Super Tuesday primaries. Former Vice President Biden took nearly half (48 percent) of the Democratic presidential primary votes in South Carolina, with Sen. Bernie Sanders (I–Vt.) earning 20 percent and former South Bend Mayor Pete Buttigieg getting just 8 percent.

Buttigieg dropped out of the race on Sunday. Businessman Tom Steyer also ended his campaign over the weekend, after getting just 11 percent of the South Carolina vote.

Sen. Elizabeth Warren (D–Mass.) placed fifth in South Carolina, with just 7 percent of the vote, trailed by Sen. Amy Klobuchar (D–Minn.) with 3 percent and Rep. Tulsi Gabbard (D–Hawaii) with 1 percent. Former New York Mayor Michael Bloomberg wasn’t on the ballot.

Both Bloomberg and Klobuchar faced protests over the weekend, forcing Klobuchar to cancel her Sunday night campaign rally at a high school in Minnesota’s St. Louis Park.

Black Lives Matter protesters were there to call out Klobuchar for the incarceration of Myon Burrell, who as a 16-year-old was convicted of murder and sentenced to life in prison. Burrell maintains his innocence, and evidence suggests he may have been wrongfully convicted in the death of 11-year-old Tyesha Edwards, who was killed by a stray bullet in 2002.

“Sen. Klobuchar was the county attorney during Burrell’s first trial,” notes WCCO. And while campaigning for president, Klobuchar has repeatedly cited the story of how she helped put Burrell away.

The Klobuchar campaign released a statement saying that “the campaign offered a meeting with the Senator” if the protesters would leave. “After the group initially agreed, they backed out of the agreement and we are cancelling the event.”

In Alabama, protesters took a much different tack, silently standing and turning their backs toward Bloomberg as he spoke at a Selma church.

The Montgomery Advertiser reports:

Bloomberg was invited to speak during Selma’s Jubilee, an annual event marking “Bloody Sunday” when hundreds of protesters were beaten and battered while marching across the Edmund Pettus Bridge in 1965.

Ryan Haygood, who turned his back on Bloomberg, told the paper:

I was sitting there really wrestling with the fact that 55 years ago 600 or more people assembled at this church and they prayed and prepared to be brutalized by Alabama state troopers about a half a mile up the bridge. Then comes Michael Bloomberg who when he was the mayor of New York City presided over those very kinds of police brutality practices and policies. So in my mind, I thought, though I was surprised to see him come through the doors, I thought he would use this space to atone for that….

And not only did he not do that, it was clear to me that he wasn’t even going to address the issue at all. And so I wrestled with it. So I felt like I had to do something to acknowledge that that’s not OK especially in this sacred space. This is a space that changed the world.

According to the Advertiser, around a dozen people “stood for about 30 seconds before Bloomberg realized what was happening. He paused, then stumbled over his words before picking back up with his speech”

Voters in 14 states and American Samoa will go to the polls tomorrow, with 1,357 delegates up for grabs. (To win the nomination, you need 1,991 delegates.) The states holding primaries will be Alabama, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.

QUICK HITS

  • The Trump administration is expanding a coronavirus-related travel ban “to include any foreign national who has visited Iran within the last 14 days,” Vice President Mike Pence said on Sunday. “The US is also increasing the travel advisory for Italy and South Korea to Level 4—the highest level—advising Americans not to travel to specific regions in those countries hit hardest by the virus,” reports CNN.
  • Two people in Washington state have died from the coronavirus. Ten cases have been confirmed there, all around the Seattle area in King County.
  • Yes, “2016 was the worst election ever,” writes Jonathan V. Last at The Bulwark. But what if “every subsequent election is worse?”

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Interesting Official Privilege Case,

From Zeleny v. Newsom, decided Friday by Magistrate Judge Thomas S. Hixson (N.D. Cal.):

This case is about crusades. Plaintiff Michael Zeleny has been on a crusade to expose the wrongdoing of a prominent Silicon Valley executive, Min Zhu. From 2005 to 2012 Zeleny staged public protests of Zhu and his cohorts at New Enterprise Associates and WebEx. Zeleny’s protests took the form of in-person demonstrations, musical performances, and multimedia posts on YouTube. His protests were intended to be provocative. They included flyers and posters with graphic content that called out individuals by name. Zeleny eventually combined the First Amendment with the Second and started openly carrying and displaying unloaded firearms during his protests.

But Zeleny says the City of Menlo Park has been on a crusade too. Fed up with his loud and unwelcome message, the City allegedly entered into a conspiracy with NEA to stifle Zeleny and stop his protests. The conspiracy began in 2009, and the City’s part of it consisted of harassing Zeleny, with police constantly stopping and questioning him and his supporters without any reasonable suspicion of wrongdoing. Undercover officers in unmarked cars trailed him and his supporters, and followed him wherever he went. The police interfered with his protests, surveilled him, and falsely branded him a security risk.

In 2012 the City went so far as to frivolously refer Zeleny to the San Mateo County District Attorney’s Office for a sham prosecution for carrying a concealed weapon, which ended in an acquittal. Following the state’s adoption of new legislation regarding open carry, the City adopted a new municipal policy that requires Zeleny to obtain a permit if he is to carry an unloaded firearm during his protests. In furtherance of the conspiracy, the City has continuously denied Zeleny’s applications, all to stifle his free speech and Second Amendment rights.

Or, at least, that’s what he says. In an effort to obtain evidence to back up these accusations, Zeleny served document requests on the City for any documents relating to him or to any actual or contemplated arrest or criminal prosecution of him. The parties are now before the Court on a dispute concerning about 40 pages of responsive documents, over which the City claims the official information privilege.

Federal courts recognize a “qualified privilege” for official information. A governmental entity seeking to invoke the privilege must “make a substantial threshold showing.” It must, “through competent declarations,” “provide[ ] the court with specific information about how the disclosure of the subject material, in the situation presented by the case at hand, would harm significant law enforcement or privacy interests.” {The law enforcement investigatory privilege is similar and does not require separate analysis.} If it does so, the court must “conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege.” The test is “moderately pre-weighted in favor of disclosure.”

Because this is a qualified privilege, we have to start with relevance. If a document is core to the case, a qualified privilege is easier to overcome. But if it’s collateral or unimportant, there’s less need to compromise the legitimate interests law enforcement may have in confidentiality. Here, the documents are clearly relevant to Zeleny’s conspiracy allegations. They are mostly dated 2012 and 2013 (with one in April 2011), during the most dangerous time in the conspiracy, when the police were harassing Zeleny and his supporters, and when the City was trying to have him imprisoned on a trumped up concealed-carry charge.

But a document has to be relevant to a “claim or defense,” not just to an allegation. So, we need to analyze the role the conspiracy plays in Zeleny’s claims against the City and its police chief.

Let’s start with the first claim for relief. Zeleny alleges that the City threatened him with criminal prosecution by claiming that some of his protest materials are obscene as to children and he seeks a declaration that they’re not obscene and, more generally, that his protests are protected First Amendment activity. The role of the conspiracy in this claim seems to depend on how the City responds to it. If the City says yes, it did make those threats and his posters are obscene as to children, the claim boils down to evaluating the obscenity status of some posters, which really has nothing to do with the City’s conduct. But if the City denies making the threats, or says the threats were because of neutral time, place and manner restrictions, then the City’s motives become important in deciding who to believe.

The conspiracy allegations function here mostly as evidence of motive and pretext. If they can be borne out by evidence, they would tend to show that the City’s actions were driven by bias against Zeleny and his message and that the City’s denials should be disbelieved.

In his second claim, Zeleny alleges that the City has wrongly interpreted the state open carry laws to create three problems (requirement for a permit, unfettered discretion, distinctions between forms of speech that are not meaningfully different) that give rise to a First Amendment violation. This claim raises factual questions about whether the City has done these things, but as pleaded, it doesn’t seem to turn on bias against Zeleny and his message. Of course, an unfettered discretion claim looks better to the trier of fact if the plaintiff can also show that the unfettered discretion was exercised with bias against him, so atmospherically the conspiracy allegations help here, even if they are not the essence of the claim.

But things come into sharper focus in the third claim. Here, Zeleny alleges that the City’s policy with respect to issuing permits for people to use unloaded firearms in various types of performances is unconstitutionally vague. But he also alleges in the alternative in paragraph 215 that the City singled him out to stifle his protests because of the content of his speech. Bias against Zeleny’s message is the core of that contention. And whatever evidence he is able to assemble of a years-long conspiracy against him is presumably how he would prove that contention.

Finally, any doubt about the relevance of the conspiracy is wiped away by the fourth claim for relief. Paragraphs 221 and 223 allege that the City threatened Zeleny with criminal prosecution to silence him and his message. So, while the role of bias against Zeleny’s message is not necessarily clear in the first and second claims for relief, it is an alternative liability theory in the third claim and the very essence of the fourth claim.

Accordingly, the documents at issue are relevant. And they are not just a little bit relevant. They date from the time Zeleny alleges the police were constantly harassing him and his supporters, so the police file is among the most important evidence necessary to evaluate the allegations at the heart of the fourth claim for relief. Thus, the qualified privilege starts out on shaky ground because these documents look like they’re core.

The City’s position is not helped by Police Chief Dave Bertini’s boilerplate declaration that is the opposite of substantial and specific. The first two paragraphs state his job title and that the declaration is based on personal knowledge. The next paragraph says that the police investigate things, sometimes working with other law enforcement agencies, and keep what they find confidential. The fourth paragraph appears to be the entire justification for the official information privilege, and it is so generic the police could use it in any lawsuit about anything:

“To disclose this official information to the general public, or even in the instant litigation pursuant to a protective order, would irreparably harm the ability of the Menlo Park Police Department and other law enforcement agencies (local, state and federal) to conduct criminal and/or public safety investigations. It is in the interest of justice to maintain the confidentiality of this material because its production would necessarily disclose how the Menlo Park Police Department and other law enforcement agencies obtain information and conduct their investigations and thus complicate their ability to conduct future investigations and irreparably damage any ongoing investigations. The production of this confidential official information would also disclose private and confidential information about third persons.”

The paragraph after that states that Zeleny’s document requests seek, in part, confidential police documents. And then Bertini swears the declaration under penalty of perjury. Bertini’s declaration is so lackluster, the Court could overrule the City’s privilege claim on this ground alone. Indeed, Kelly holds that the Court should do exactly that and not even bother with an in camera review if the defendant’s affidavit is insufficient.

But in an abundance of caution, the Court has conducted an in camera review of the documents at issue. They contain some information that was sensitive eight years ago, such as planned visits to the area by a presidential candidate and the Secretary of Defense. There are also law enforcement updates on then-recent events, suspicious activities, and assessments of security threats to the 2012 election. None of the documents are classified. These documents are so stale that their production will not in any way undermine legitimate law enforcement objectives. Because the documents have the names of specific people in them, including law enforcement officers and others, they should not be posted on the internet for the whole world to see, but there isn’t anything in them that justifies not giving them to Zeleny … subject to an appropriate protective order.

 

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Interesting Official Privilege Case,

From Zeleny v. Newsom, decided Friday by Magistrate Judge Thomas S. Hixson (N.D. Cal.):

This case is about crusades. Plaintiff Michael Zeleny has been on a crusade to expose the wrongdoing of a prominent Silicon Valley executive, Min Zhu. From 2005 to 2012 Zeleny staged public protests of Zhu and his cohorts at New Enterprise Associates and WebEx. Zeleny’s protests took the form of in-person demonstrations, musical performances, and multimedia posts on YouTube. His protests were intended to be provocative. They included flyers and posters with graphic content that called out individuals by name. Zeleny eventually combined the First Amendment with the Second and started openly carrying and displaying unloaded firearms during his protests.

But Zeleny says the City of Menlo Park has been on a crusade too. Fed up with his loud and unwelcome message, the City allegedly entered into a conspiracy with NEA to stifle Zeleny and stop his protests. The conspiracy began in 2009, and the City’s part of it consisted of harassing Zeleny, with police constantly stopping and questioning him and his supporters without any reasonable suspicion of wrongdoing. Undercover officers in unmarked cars trailed him and his supporters, and followed him wherever he went. The police interfered with his protests, surveilled him, and falsely branded him a security risk.

In 2012 the City went so far as to frivolously refer Zeleny to the San Mateo County District Attorney’s Office for a sham prosecution for carrying a concealed weapon, which ended in an acquittal. Following the state’s adoption of new legislation regarding open carry, the City adopted a new municipal policy that requires Zeleny to obtain a permit if he is to carry an unloaded firearm during his protests. In furtherance of the conspiracy, the City has continuously denied Zeleny’s applications, all to stifle his free speech and Second Amendment rights.

Or, at least, that’s what he says. In an effort to obtain evidence to back up these accusations, Zeleny served document requests on the City for any documents relating to him or to any actual or contemplated arrest or criminal prosecution of him. The parties are now before the Court on a dispute concerning about 40 pages of responsive documents, over which the City claims the official information privilege.

Federal courts recognize a “qualified privilege” for official information. A governmental entity seeking to invoke the privilege must “make a substantial threshold showing.” It must, “through competent declarations,” “provide[ ] the court with specific information about how the disclosure of the subject material, in the situation presented by the case at hand, would harm significant law enforcement or privacy interests.” {The law enforcement investigatory privilege is similar and does not require separate analysis.} If it does so, the court must “conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege.” The test is “moderately pre-weighted in favor of disclosure.”

Because this is a qualified privilege, we have to start with relevance. If a document is core to the case, a qualified privilege is easier to overcome. But if it’s collateral or unimportant, there’s less need to compromise the legitimate interests law enforcement may have in confidentiality. Here, the documents are clearly relevant to Zeleny’s conspiracy allegations. They are mostly dated 2012 and 2013 (with one in April 2011), during the most dangerous time in the conspiracy, when the police were harassing Zeleny and his supporters, and when the City was trying to have him imprisoned on a trumped up concealed-carry charge.

But a document has to be relevant to a “claim or defense,” not just to an allegation. So, we need to analyze the role the conspiracy plays in Zeleny’s claims against the City and its police chief.

Let’s start with the first claim for relief. Zeleny alleges that the City threatened him with criminal prosecution by claiming that some of his protest materials are obscene as to children and he seeks a declaration that they’re not obscene and, more generally, that his protests are protected First Amendment activity. The role of the conspiracy in this claim seems to depend on how the City responds to it. If the City says yes, it did make those threats and his posters are obscene as to children, the claim boils down to evaluating the obscenity status of some posters, which really has nothing to do with the City’s conduct. But if the City denies making the threats, or says the threats were because of neutral time, place and manner restrictions, then the City’s motives become important in deciding who to believe.

The conspiracy allegations function here mostly as evidence of motive and pretext. If they can be borne out by evidence, they would tend to show that the City’s actions were driven by bias against Zeleny and his message and that the City’s denials should be disbelieved.

In his second claim, Zeleny alleges that the City has wrongly interpreted the state open carry laws to create three problems (requirement for a permit, unfettered discretion, distinctions between forms of speech that are not meaningfully different) that give rise to a First Amendment violation. This claim raises factual questions about whether the City has done these things, but as pleaded, it doesn’t seem to turn on bias against Zeleny and his message. Of course, an unfettered discretion claim looks better to the trier of fact if the plaintiff can also show that the unfettered discretion was exercised with bias against him, so atmospherically the conspiracy allegations help here, even if they are not the essence of the claim.

But things come into sharper focus in the third claim. Here, Zeleny alleges that the City’s policy with respect to issuing permits for people to use unloaded firearms in various types of performances is unconstitutionally vague. But he also alleges in the alternative in paragraph 215 that the City singled him out to stifle his protests because of the content of his speech. Bias against Zeleny’s message is the core of that contention. And whatever evidence he is able to assemble of a years-long conspiracy against him is presumably how he would prove that contention.

Finally, any doubt about the relevance of the conspiracy is wiped away by the fourth claim for relief. Paragraphs 221 and 223 allege that the City threatened Zeleny with criminal prosecution to silence him and his message. So, while the role of bias against Zeleny’s message is not necessarily clear in the first and second claims for relief, it is an alternative liability theory in the third claim and the very essence of the fourth claim.

Accordingly, the documents at issue are relevant. And they are not just a little bit relevant. They date from the time Zeleny alleges the police were constantly harassing him and his supporters, so the police file is among the most important evidence necessary to evaluate the allegations at the heart of the fourth claim for relief. Thus, the qualified privilege starts out on shaky ground because these documents look like they’re core.

The City’s position is not helped by Police Chief Dave Bertini’s boilerplate declaration that is the opposite of substantial and specific. The first two paragraphs state his job title and that the declaration is based on personal knowledge. The next paragraph says that the police investigate things, sometimes working with other law enforcement agencies, and keep what they find confidential. The fourth paragraph appears to be the entire justification for the official information privilege, and it is so generic the police could use it in any lawsuit about anything:

“To disclose this official information to the general public, or even in the instant litigation pursuant to a protective order, would irreparably harm the ability of the Menlo Park Police Department and other law enforcement agencies (local, state and federal) to conduct criminal and/or public safety investigations. It is in the interest of justice to maintain the confidentiality of this material because its production would necessarily disclose how the Menlo Park Police Department and other law enforcement agencies obtain information and conduct their investigations and thus complicate their ability to conduct future investigations and irreparably damage any ongoing investigations. The production of this confidential official information would also disclose private and confidential information about third persons.”

The paragraph after that states that Zeleny’s document requests seek, in part, confidential police documents. And then Bertini swears the declaration under penalty of perjury. Bertini’s declaration is so lackluster, the Court could overrule the City’s privilege claim on this ground alone. Indeed, Kelly holds that the Court should do exactly that and not even bother with an in camera review if the defendant’s affidavit is insufficient.

But in an abundance of caution, the Court has conducted an in camera review of the documents at issue. They contain some information that was sensitive eight years ago, such as planned visits to the area by a presidential candidate and the Secretary of Defense. There are also law enforcement updates on then-recent events, suspicious activities, and assessments of security threats to the 2012 election. None of the documents are classified. These documents are so stale that their production will not in any way undermine legitimate law enforcement objectives. Because the documents have the names of specific people in them, including law enforcement officers and others, they should not be posted on the internet for the whole world to see, but there isn’t anything in them that justifies not giving them to Zeleny … subject to an appropriate protective order.

 

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Bloomberg Is a Statist, Not a Centrist

Any day now, Americans could wake up to the prospect of a months-long slog between Sen. Bernie Sanders (I-Vt.) and President Trump. Faced with the dispiriting choice between shouty democratic socialism and barky populist nationalism, voters may find themselves grasping for any lifeline in the vast ocean between the two ideological poles.

One option is the once and maybe future independent, former New York mayor Mike Bloomberg, who has pushed himself into the “centrist” lane in the Democratic primary race, offering himself as an alternative to middle-of-the-roaders Joe Biden, former mayor Pete Buttigieg and Sen. Amy Klobuchar (Minn.).

But Bloomberg is no centrist, no matter how much he cultivates the label. His policy positions are not the “moderate,” reasonable middle ground between extremes. No, the right word to describe Bloomberg is “statist.” He’s the leading exemplar, even more than Sanders, of addressing problems “pragmatically” by hitting the big red button labeled “government.”

Advocating for federal intervention at the height of the financial crisis in 2008, Bloomberg on “Meet the Press” delivered arguably the single most succinct summation of do-something governance: “Nobody knows exactly what they should do, but anything is better than nothing.”

The hastily conceived “anything” in this case included using taxpayer money to cover for the reckless decision-making of the country’s wealthiest financial institutions, an outrage so blatant it helped spark not one but two populist backlashes: the Tea Party on the right and Occupy Wall Street on the left.

Such is the track record of panicky government crisis responses, the most notorious of which Bloomberg has dependably backed over the years.

The Iraq War? He still doesn’t regret his support, which led to such awkward-for-2020 moments as the then-mayor praising President George W. Bush during the 2004 Republican National Convention for “leading the global war on terrorism.”

How about covert, warrantless surveillance of Americans exercising their political and religious rights after 9/11? Check. The drug war? As recently as last January, the onetime pot enthusiast turned overseer of the marijuana arrest capital of the world called legalizing marijuana “perhaps the stupidest thing anybody has ever done.” (He only very recently altered his prohibitionism to advocate decriminalizing individual possession “if you have a small amount.”)

Back when he was promoting his version of centrism as a trans-partisan independent in 2012, Bloomberg depicted his effort as anti-ideological “problem solving.” In reality, the only limits on problem solving — at least until that pesky Constitution is applied — are governmental capacity and politicians’ ability to identify problems. And boy, does Bloomberg see the latter everywhere.

People, for example, don’t always eat healthfully. So in the name of public health, as mayor he went after, among many other things, food carts, trans fats and salt, lecturing to a United Nations General Assembly meeting that “there are powers only governments can exercise, policies only governments can mandate and enforce, and results only governments can achieve.”

When courts blocked Bloomberg’s infamous efforts to limit the size of sodas, his response was equally ideological. “We have a responsibility as human beings to do something, to save each other, to save the lives of ourselves, our families, our friends and all of the rest of the people that live on God’s planet,” he proclaimed. “And so while other people will wring their hands over the problem of sugary drinks, in New York City, we’re doing something about it.”

If you’re detecting a line of governmental paternalism toward citizen-subjects — including but not limited to his post-mayoral leadership role in restricting people’s access to guns and electronic cigarettes — Bloomberg will cop right to it. Addressing sin taxes in a 2018 interview, he said: “Some people say, well, taxes are regressive. But in this case, yes they are! That’s the good thing about them, because the problem is in people that don’t have a lot of money. And so, higher taxes should have a bigger impact on their behavior and how they deal with themselves.” He added, “The question is, do you want to pander to those people, or do you want to get them to live longer?”

Thankfully, Bloomberg’s brand of statism, unlike that of Sanders, at least recognizes that the government does not have limitless capacity, either in terms of resources or competence. So he’ll occasionally veer in policy directions such as expanding school choice and acknowledging that trillion-dollar deficits are a flagrantly irresponsible risk.

But unlike Sanders (or, depending on the day of the week, Trump), Bloomberg does not apply that logic to some life-or-death issues such as foreign policy, surveillance and policing. In a New York Times candidate questionnaire, Bloomberg backed Trump’s legally dubious drone killing of Qasem Soleimani, said he would keep troops in Afghanistan at least until the end of his first presidential term, and said he would preserve the option to use military force to protect oil shipments and prevent nuclear tests by Iran and North Korea. After the 2013 Boston Marathon bombing, he advised Americans to buck up and get ready for more intrusive levels of surveillance: “Our laws and our interpretation of the Constitution I think have to change.”

As for policing, back when he was still defending New York’s controversial “stop, question and frisk” policy — that is, until he launched his presidential campaign — Bloomberg justified shaking down innocents, mostly black and Latino, as a way to discourage people from carrying guns. At least one federal judge didn’t share his enthusiasm for these wholesale discriminatory, unreasonable searches.

There is nothing inherently centrist about a police state. To the extent that people who imagine themselves to be in the ideological middle support politicians who repeatedly back government prerogative over individual rights, our coming Trump-Sanders moment may provide an opportunity for self-reflection.

Americans don’t much like being bossed around. And the serial, unacknowledged failures of the do-something class have made ideological deviants like Trump and Sanders look a lot less scary to a lot of people. Maybe when “centrist” politicians look less statist, more of us politically homeless types will find them more attractive.

“It’s the government’s job to have good science and to explain to people what science says or how to take care of themselves and extend their lives,” Bloomberg posited during Tuesday’s debate in South Carolina. “We are a country where there are too many people that are obese. We should do something about that.”

Hopefully, he won’t get that chance.

A version of this article first ran in the Washington Post.

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Bloomberg Is a Statist, Not a Centrist

Any day now, Americans could wake up to the prospect of a months-long slog between Sen. Bernie Sanders (I-Vt.) and President Trump. Faced with the dispiriting choice between shouty democratic socialism and barky populist nationalism, voters may find themselves grasping for any lifeline in the vast ocean between the two ideological poles.

One option is the once and maybe future independent, former New York mayor Mike Bloomberg, who has pushed himself into the “centrist” lane in the Democratic primary race, offering himself as an alternative to middle-of-the-roaders Joe Biden, former mayor Pete Buttigieg and Sen. Amy Klobuchar (Minn.).

But Bloomberg is no centrist, no matter how much he cultivates the label. His policy positions are not the “moderate,” reasonable middle ground between extremes. No, the right word to describe Bloomberg is “statist.” He’s the leading exemplar, even more than Sanders, of addressing problems “pragmatically” by hitting the big red button labeled “government.”

Advocating for federal intervention at the height of the financial crisis in 2008, Bloomberg on “Meet the Press” delivered arguably the single most succinct summation of do-something governance: “Nobody knows exactly what they should do, but anything is better than nothing.”

The hastily conceived “anything” in this case included using taxpayer money to cover for the reckless decision-making of the country’s wealthiest financial institutions, an outrage so blatant it helped spark not one but two populist backlashes: the Tea Party on the right and Occupy Wall Street on the left.

Such is the track record of panicky government crisis responses, the most notorious of which Bloomberg has dependably backed over the years.

The Iraq War? He still doesn’t regret his support, which led to such awkward-for-2020 moments as the then-mayor praising President George W. Bush during the 2004 Republican National Convention for “leading the global war on terrorism.”

How about covert, warrantless surveillance of Americans exercising their political and religious rights after 9/11? Check. The drug war? As recently as last January, the onetime pot enthusiast turned overseer of the marijuana arrest capital of the world called legalizing marijuana “perhaps the stupidest thing anybody has ever done.” (He only very recently altered his prohibitionism to advocate decriminalizing individual possession “if you have a small amount.”)

Back when he was promoting his version of centrism as a trans-partisan independent in 2012, Bloomberg depicted his effort as anti-ideological “problem solving.” In reality, the only limits on problem solving — at least until that pesky Constitution is applied — are governmental capacity and politicians’ ability to identify problems. And boy, does Bloomberg see the latter everywhere.

People, for example, don’t always eat healthfully. So in the name of public health, as mayor he went after, among many other things, food carts, trans fats and salt, lecturing to a United Nations General Assembly meeting that “there are powers only governments can exercise, policies only governments can mandate and enforce, and results only governments can achieve.”

When courts blocked Bloomberg’s infamous efforts to limit the size of sodas, his response was equally ideological. “We have a responsibility as human beings to do something, to save each other, to save the lives of ourselves, our families, our friends and all of the rest of the people that live on God’s planet,” he proclaimed. “And so while other people will wring their hands over the problem of sugary drinks, in New York City, we’re doing something about it.”

If you’re detecting a line of governmental paternalism toward citizen-subjects — including but not limited to his post-mayoral leadership role in restricting people’s access to guns and electronic cigarettes — Bloomberg will cop right to it. Addressing sin taxes in a 2018 interview, he said: “Some people say, well, taxes are regressive. But in this case, yes they are! That’s the good thing about them, because the problem is in people that don’t have a lot of money. And so, higher taxes should have a bigger impact on their behavior and how they deal with themselves.” He added, “The question is, do you want to pander to those people, or do you want to get them to live longer?”

Thankfully, Bloomberg’s brand of statism, unlike that of Sanders, at least recognizes that the government does not have limitless capacity, either in terms of resources or competence. So he’ll occasionally veer in policy directions such as expanding school choice and acknowledging that trillion-dollar deficits are a flagrantly irresponsible risk.

But unlike Sanders (or, depending on the day of the week, Trump), Bloomberg does not apply that logic to some life-or-death issues such as foreign policy, surveillance and policing. In a New York Times candidate questionnaire, Bloomberg backed Trump’s legally dubious drone killing of Qasem Soleimani, said he would keep troops in Afghanistan at least until the end of his first presidential term, and said he would preserve the option to use military force to protect oil shipments and prevent nuclear tests by Iran and North Korea. After the 2013 Boston Marathon bombing, he advised Americans to buck up and get ready for more intrusive levels of surveillance: “Our laws and our interpretation of the Constitution I think have to change.”

As for policing, back when he was still defending New York’s controversial “stop, question and frisk” policy — that is, until he launched his presidential campaign — Bloomberg justified shaking down innocents, mostly black and Latino, as a way to discourage people from carrying guns. At least one federal judge didn’t share his enthusiasm for these wholesale discriminatory, unreasonable searches.

There is nothing inherently centrist about a police state. To the extent that people who imagine themselves to be in the ideological middle support politicians who repeatedly back government prerogative over individual rights, our coming Trump-Sanders moment may provide an opportunity for self-reflection.

Americans don’t much like being bossed around. And the serial, unacknowledged failures of the do-something class have made ideological deviants like Trump and Sanders look a lot less scary to a lot of people. Maybe when “centrist” politicians look less statist, more of us politically homeless types will find them more attractive.

“It’s the government’s job to have good science and to explain to people what science says or how to take care of themselves and extend their lives,” Bloomberg posited during Tuesday’s debate in South Carolina. “We are a country where there are too many people that are obese. We should do something about that.”

Hopefully, he won’t get that chance.

A version of this article first ran in the Washington Post.

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The National Interest, C’est Moi

“I want to be elected. I think I am a great president. I think I am the greatest president there ever was, and if I am not elected, the national interest will suffer greatly.” These are the words of a hypothetical president, as imagined by Alan Dershowitz in his role as one of Donald Trump’s lawyers during the final days of the Senate impeachment trial.

That hypothetical president, said Dershowitz, would not have committed an impeachable offense if he offered an otherwise-legal quid pro quo partially motivated by a desire to improve his own electoral chances. After all, “every public official that I know believes that his election is in the public interest.”

Despite Dershowitz’s Harvard credentials and long standing as a liberal stalwart, this thought experiment was greeted with a storm of disdain on the Hill and within the legal community.

“His argument was beyond absurd. I thought he made absolutely no sense—because he essentially said that if President Trump believes his election is for the good of the American people that he could do whatever he wants,” Sen. Kirsten Gillibrand (D–N.Y.) told The Washington Post. “He is wrong, and I think he’s made a laughable argument that undermines the president’s case.”

Senate Minority Leader Chuck Schumer (D–N.Y.) echoed the sentiment: “The Dershowitz argument frankly would unleash a monster, more aptly it would unleash a monarch.”

“Our country was founded on this idea that we were an independent democracy, that we didn’t want to be ruled by a king,” Sen. Amy Klobuchar (D–Minn.) chorused. “And if you say things like that—like you can do anything you want and it doesn’t matter—just to further your election, you basically have a dictator. You have a king. You have no democracy.”

Yet the same Democrats who descended into dread at Dershowitz’s thought experiment about the relationship between executive power and national interest seem disconcertingly lacking in self-awareness about how such a critique would apply to their own plans for the day their party once again holds the reins.

Klobuchar herself has promised to use executive action in her first 100 days to enact new policies on gun control, financial regulation, immigration, union protections, cybersecurity, and much more. She has made these promises, one assumes, out of mixed motivations: She believes such actions would be in the national interest, but she also thinks that promising to do these things will increase her chances of being elected and that doing them will increase her chances of being re-elected.

Staffers for Sen. Bernie Sanders (I–Vt.) have already begun drafting the dozens of executive orders that would be required to fulfill the promises he has been making for the debut of his presidency, from directing the Justice Department to legalize marijuana to declaring a climate change emergency to banning the export of crude oil to canceling all federal contracts that pay workers less than $15 per hour.

Indeed, every one of the would-be contenders for the presidency has promised to use his early days in office to single-handedly promulgate major policy changes using powers reserved to the executive.

Topping them all is Michael Bloomberg, who has enjoyed a surprisingly fast ascent in the polls after a late entrance into the Democratic primaries. The billionaire mayor rammed through a change in New York City’s term limits to clear the way for his third term in Gracie Mansion, citing the necessity of strong leadership during the financial crisis. “We may well be on the verge of a meltdown, and it’s up to us to rise to the occasion,” he said at a 2008 news conference. New Yorkers, finally given the chance to vote on the matter, restored term limits shortly after his re-election. Bloomberg, too, has dozens of executive orders up his sleeve for the day he assumes office.

Presidents will naturally have a complicated and expansive understanding of the national interest. And because presidents are human, that understanding will—as a general matter—dovetail neatly with their own partisan and personal political interests.

Running for high office (at least in the 21st century, but perhaps everywhere and always) requires a set of unusual traits, one of which is a reduced or nonexistent sense of humility. Most neurotypical human beings faced with the demands of a presidential campaign would quickly conclude either that it’s more trouble than it’s worth or that someone else could do the job better. But a successful contender for the presidency must believe, deep in his secret heart, that he alone can best serve the national interest.

Upon attaining office, a president does indeed assume tremendous power in the domestic sphere and the right to exercise massive amounts of discretion in foreign policy. He also immediately becomes a scapegoat and sin eater.

Nowhere is this more apparent than on economic questions. Political soothsayers have compellingly made the case that a strong economy is one of the best predictors for the re-election of a sitting president. And as Veronique de Rugy explains in “Just How Good Is Trump’s Economy, Anyway?” (page 29), a president does have influence over some aspects of the market. But he is hardly the kind of god-king that most Americans imagine him to be, empowered to make the NASDAQ and the S&P 500 rise and fall with a wave of his hand. Presidents do their best and then hang on for the ride, taking credit in the good times and passing blame in the bad times. Still, when the economy is doing well, one can easily imagine a president convincing himself (and the electorate) that it’s in everyone’s interest to keep him in power if they want the good times to keep rolling. Of course, if the economy is floundering, the same president is likely to make the case that only a steady hand on the tiller can right the ship and so he must retain power if there is to be any hope of recovery. Motivated reasoning can be awfully flexible.

This is hardly a new phenomenon, as historian Amity Shlaes explains in her interview with Nick Gillespie (page 48). The Great Society was both an idealistic vision of a new way to conceive of the national interest and a brutal electoral calculation by President Lyndon Johnson about how to establish his legacy at a highly unstable political moment. “When Johnson became president, he wanted to do something that would make him look great—greater than President [John F.] Kennedy, who preceded him and died tragically,” she explains.

It’s been manifesto season on the right, as conservatism’s big brains struggle to come to terms with what Donald Trump hath wrought and figure out a way forward. The result has been the movement described by Stephanie Slade in “Against the New Nationalism” (page 22). This new breed of nationalists complains that libertarians have too much influence, fetishizing individual autonomy and global economic growth to the point that our polity is on the brink of ruin. They insist that Americans must put our economic, cultural, and political interests above those of the rest of the world in order to preserve something vitally important and unique. In many ways, the nationalist resurgence is an attempt by conservative intellectuals to retcon the Trump presidency as part of a larger evolution of the national interest.

But right now the ratio of nationalist manifestos to nationalists is approximately 1:1—tough conditions to get a new movement off the ground. Some of the new nationalists see an aggressive foreign policy stance as central to the national interest, while others favor a systematic withdrawal to a stronger defensive position. Some are untroubled by relatively free trade, while most see that as the root of many evils. Some want harsher immigration restrictionism; others prefer to incentivize native births. And on and on.

This inability to agree on the nature of the national interest is endemic not just to the new nationalism, but to all of politics. Occasionally entire nations do manage a kind of convergence on this question. But that typically happens when they’re physically under attack by a foreign invader. (The same theory might work globally if an enormous and deadly alien squid fell from the sky, as Alan Moore imagines in Watchmen and as Paul Krugman has considered in his columns.)

But the U.S. faces no such threat, no matter how many real and metaphorical wars we are currently engaged in. As the spectacle of the impeachment demonstrated, far from rejoicing in a single conception of who we are and where we should be heading, the political classes and the electorate are bitterly divided about the nature of the national interest and the best person to wield the powers of the presidency to pursue it.

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The National Interest, C’est Moi

“I want to be elected. I think I am a great president. I think I am the greatest president there ever was, and if I am not elected, the national interest will suffer greatly.” These are the words of a hypothetical president, as imagined by Alan Dershowitz in his role as one of Donald Trump’s lawyers during the final days of the Senate impeachment trial.

That hypothetical president, said Dershowitz, would not have committed an impeachable offense if he offered an otherwise-legal quid pro quo partially motivated by a desire to improve his own electoral chances. After all, “every public official that I know believes that his election is in the public interest.”

Despite Dershowitz’s Harvard credentials and long standing as a liberal stalwart, this thought experiment was greeted with a storm of disdain on the Hill and within the legal community.

“His argument was beyond absurd. I thought he made absolutely no sense—because he essentially said that if President Trump believes his election is for the good of the American people that he could do whatever he wants,” Sen. Kirsten Gillibrand (D–N.Y.) told The Washington Post. “He is wrong, and I think he’s made a laughable argument that undermines the president’s case.”

Senate Minority Leader Chuck Schumer (D–N.Y.) echoed the sentiment: “The Dershowitz argument frankly would unleash a monster, more aptly it would unleash a monarch.”

“Our country was founded on this idea that we were an independent democracy, that we didn’t want to be ruled by a king,” Sen. Amy Klobuchar (D–Minn.) chorused. “And if you say things like that—like you can do anything you want and it doesn’t matter—just to further your election, you basically have a dictator. You have a king. You have no democracy.”

Yet the same Democrats who descended into dread at Dershowitz’s thought experiment about the relationship between executive power and national interest seem disconcertingly lacking in self-awareness about how such a critique would apply to their own plans for the day their party once again holds the reins.

Klobuchar herself has promised to use executive action in her first 100 days to enact new policies on gun control, financial regulation, immigration, union protections, cybersecurity, and much more. She has made these promises, one assumes, out of mixed motivations: She believes such actions would be in the national interest, but she also thinks that promising to do these things will increase her chances of being elected and that doing them will increase her chances of being re-elected.

Staffers for Sen. Bernie Sanders (I–Vt.) have already begun drafting the dozens of executive orders that would be required to fulfill the promises he has been making for the debut of his presidency, from directing the Justice Department to legalize marijuana to declaring a climate change emergency to banning the export of crude oil to canceling all federal contracts that pay workers less than $15 per hour.

Indeed, every one of the would-be contenders for the presidency has promised to use his early days in office to single-handedly promulgate major policy changes using powers reserved to the executive.

Topping them all is Michael Bloomberg, who has enjoyed a surprisingly fast ascent in the polls after a late entrance into the Democratic primaries. The billionaire mayor rammed through a change in New York City’s term limits to clear the way for his third term in Gracie Mansion, citing the necessity of strong leadership during the financial crisis. “We may well be on the verge of a meltdown, and it’s up to us to rise to the occasion,” he said at a 2008 news conference. New Yorkers, finally given the chance to vote on the matter, restored term limits shortly after his re-election. Bloomberg, too, has dozens of executive orders up his sleeve for the day he assumes office.

Presidents will naturally have a complicated and expansive understanding of the national interest. And because presidents are human, that understanding will—as a general matter—dovetail neatly with their own partisan and personal political interests.

Running for high office (at least in the 21st century, but perhaps everywhere and always) requires a set of unusual traits, one of which is a reduced or nonexistent sense of humility. Most neurotypical human beings faced with the demands of a presidential campaign would quickly conclude either that it’s more trouble than it’s worth or that someone else could do the job better. But a successful contender for the presidency must believe, deep in his secret heart, that he alone can best serve the national interest.

Upon attaining office, a president does indeed assume tremendous power in the domestic sphere and the right to exercise massive amounts of discretion in foreign policy. He also immediately becomes a scapegoat and sin eater.

Nowhere is this more apparent than on economic questions. Political soothsayers have compellingly made the case that a strong economy is one of the best predictors for the re-election of a sitting president. And as Veronique de Rugy explains in “Just How Good Is Trump’s Economy, Anyway?” (page 29), a president does have influence over some aspects of the market. But he is hardly the kind of god-king that most Americans imagine him to be, empowered to make the NASDAQ and the S&P 500 rise and fall with a wave of his hand. Presidents do their best and then hang on for the ride, taking credit in the good times and passing blame in the bad times. Still, when the economy is doing well, one can easily imagine a president convincing himself (and the electorate) that it’s in everyone’s interest to keep him in power if they want the good times to keep rolling. Of course, if the economy is floundering, the same president is likely to make the case that only a steady hand on the tiller can right the ship and so he must retain power if there is to be any hope of recovery. Motivated reasoning can be awfully flexible.

This is hardly a new phenomenon, as historian Amity Shlaes explains in her interview with Nick Gillespie (page 48). The Great Society was both an idealistic vision of a new way to conceive of the national interest and a brutal electoral calculation by President Lyndon Johnson about how to establish his legacy at a highly unstable political moment. “When Johnson became president, he wanted to do something that would make him look great—greater than President [John F.] Kennedy, who preceded him and died tragically,” she explains.

It’s been manifesto season on the right, as conservatism’s big brains struggle to come to terms with what Donald Trump hath wrought and figure out a way forward. The result has been the movement described by Stephanie Slade in “Against the New Nationalism” (page 22). This new breed of nationalists complains that libertarians have too much influence, fetishizing individual autonomy and global economic growth to the point that our polity is on the brink of ruin. They insist that Americans must put our economic, cultural, and political interests above those of the rest of the world in order to preserve something vitally important and unique. In many ways, the nationalist resurgence is an attempt by conservative intellectuals to retcon the Trump presidency as part of a larger evolution of the national interest.

But right now the ratio of nationalist manifestos to nationalists is approximately 1:1—tough conditions to get a new movement off the ground. Some of the new nationalists see an aggressive foreign policy stance as central to the national interest, while others favor a systematic withdrawal to a stronger defensive position. Some are untroubled by relatively free trade, while most see that as the root of many evils. Some want harsher immigration restrictionism; others prefer to incentivize native births. And on and on.

This inability to agree on the nature of the national interest is endemic not just to the new nationalism, but to all of politics. Occasionally entire nations do manage a kind of convergence on this question. But that typically happens when they’re physically under attack by a foreign invader. (The same theory might work globally if an enormous and deadly alien squid fell from the sky, as Alan Moore imagines in Watchmen and as Paul Krugman has considered in his columns.)

But the U.S. faces no such threat, no matter how many real and metaphorical wars we are currently engaged in. As the spectacle of the impeachment demonstrated, far from rejoicing in a single conception of who we are and where we should be heading, the political classes and the electorate are bitterly divided about the nature of the national interest and the best person to wield the powers of the presidency to pursue it.

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