Whether Trump Stays or Goes, We Need To Rein in Presidents and Congress

As the impeachment process gets underway—and grows more partisan and frenetic with every passing minute—it’s important to keep our eyes on the big picture that actually affects all Americans. For decades, the presidency has been getting more and more imperial, with Oval Office occupants openly flouting constraints on their exercise of power and Congress abdicating its role in doing anything other than spending more money and acting out of partisan interests. This process didn’t begin with President Donald Trump and it won’t end even if he is removed from office. From this libertarian’s perspective, impeachment is a distraction from the far more important—and daunting—problem of a government that costs more of our money and controls more of our lives with every passing year.

Does Trump deserve to get the hook? There’s no question that he has acted abrasively since taking office, always pushing the envelope of acceptable behavior, decorum, and policy, whether by issuing travel bans specifically (and illegally) targeting Muslims, staffing the White House with his manifestly unqualified children and their spouses, or redirecting money to build his idiotic fence against the phantom menace of Mexican hordes bum-rushing the southern border. Is any of that, or his actions regarding Ukraine, impeachable? As Gerald Ford said in 1970, an impeachable offense “is whatever a majority of the House of Representatives considers it to be at a given moment in history.” So we’ll be finding out soon enough.

But except for sheer coarseness and vulgarity, none of this is new or shocking. Barack Obama was mostly polite and more presentable to the public, but he similarly evinced nothing but contempt for restraints on his desired aims. His signature policy accomplishment, Obamacare, was built on the novel idea that the government couldn’t just regulate economic activity but could actually force individuals to buy something they didn’t want. Given such a break with tradition, it’s unsurprising that it was the only piece of major legislation in decades that was pushed through on the votes of a single party. Even then, it took the fecklessness and rewrite skills of Supreme Court Chief Justice John Roberts to make it constitutional. On other matters, Obama famously ruled with his “pen and phone,” issuing executive orders and actions to implement policies for which he couldn’t muster support from Congress. When it came to war and surveillance, he simply ignored constitutional limits on his whims or lied about his administration’s commitment to transparency even as he was spying on virtually all Americans.

It’s needless to say but always worth remembering that George W. Bush was not particularly different. Though Bush conjured bipartisan majorities for awful and budget-busting programs such as wars in Afghanistan and Iraq, the Medicare prescription drug plan, and No Child Left Behind, his administration also implemented secret torture programs overseas and mass surveillance programs domestically, all while being “pathological about secrecy,” even to the point of urging federal agencies to slow down or deny Freedom of Information Act requests.

To such executive branch flexes we must add the brute reality that Congress has been mostly AWOL for all of the 21st century, apart from taking nakedly partisan jabs at chief executives from the other party. Democrats mostly went along (at least at first) with George W. Bush’s big-ticket, disastrous foreign and domestic policy priorities. They only cared about limiting government when their guy wasn’t sleeping at 1600 Pennsylvania Avenue. On the road to becoming the first female Speaker of the House after the 2006 elections, Rep. Nancy Pelosi (D-Calif.) promised she would oversee federal budgets with “no new deficit spending,” a pledge that lasted until she actually became Speaker of the House and pushed a budget-busting farm bill.

Republicans spent like drunken sailors and regulated the hell out of the economy when they controlled the purse strings and got to pick winners and losers in the economy. They only talk about cutting spending and limiting government when a Democrat is in charge. Back when Obama was president, GOP representatives and senators were constantly going on and on about “Article I projects” and the desperate need to revitalize the separation of powers and tame the presidency. That all ended the minute it became clear that Donald Trump had beaten Hillary Clinton.

This is the essential context for the impeachment of Donald Trump. The size, scope, and spending of the federal government won’t change regardless of his fate. Like his predecessors, he has arrogated more power to himself while also driving up deficits and diminishing trust and confidence in the ability of government to perform basic functions. All of the Democratic candidates for president have pledged to spend trillions of dollars on an ever-proliferating series of new programs such as Medicare for All, free college tuition, the Green New Deal, a universal basic income, and more.

All of that is why I’m less concerned with the fate of Donald Trump per se than I am about the persistence of an expansive federal government whose spending is suppressing growth and whose programs are typically inefficient at best and counterproductive at worst. Without addressing the bigger picture, the battle over Trump’s fate will be an exercise in futility, a partisan plot climax that will thrill one set of partisans for a while but give no relief or release to the plurality of Americans who identify as independents.

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Did Trump Commit a Crime by Seeking a Ukrainian Investigation of Joe Biden? And Does It Matter for Impeachment Purposes?

Did Donald Trump commit a crime when he urged Ukrainian President Volodymyr Zelenskiy to investigate former Vice President Joe Biden? Many of the president’s critics say yes, and they have floated several legal theories, ranging from frivolous to debatable.

Treason

This week, former Massachusetts governor William Weld, who is notionally challenging Trump for the Republican Party’s 2020 presidential nomination, claimed Trump is guilty of “treason, pure and simple.” He added that “the penalty for treason under the U.S. Code is death.”

The legal definition of treason requires waging war against the United States or “adher[ing]” to its enemies (defined as nations or organizations that are at war with it) by giving them “aid and comfort.” Ukraine is a U.S. ally, not an enemy. It is not at war with the United States. (Neither is Russia, which may be the country Weld had in mind.) In any event, Trump’s alleged aim was not to help Ukraine (or Russia) but to help himself by getting its government to dig up dirt on a man who wants to take his job away. Weld, who as a former U.S. attorney certainly should know better, also erroneously claimed death is “the only penalty” for treason. The possible penalties include prison and fines as well as execution.

Bribery

Fox News legal analyst Andrew Napolitano argues that Trump’s July 25 telephone conversation with Zelenskiy could be construed as bribery: “When the president asks a foreign government—the head of a foreign government—to do something to help his campaign, when the president adds a condition to the receipt of foreign funds that Congress didn’t add, and when that condition benefits the president’s campaign and not American foreign policy, the president has arguably walked into the area of bribery.”

The federal bribery statute applies to U.S. officials, not foreign officials, so the relevant question is not whether Trump tried to bribe Zelenskiy with military aid but whether he solicited a bribe from Zelenskiy. Under 18 USC 201, a federal official (such as Trump) commits a felony when “he directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for…an official act.”

In this case, the “official act” presumably would be delivering the military aid that Trump had blocked before his conversation with Zelenskiy (although Zelenskiy did not know about that decision at the time). The “thing of value” allegedly solicited by Trump would be compromising information about Biden, a leading contender to oppose him as the Democratic nominee in next year’s election.

As a Columbia Law School guide to federal statutes used in corruption cases notes, “federal courts have held that the term ‘anything of value’ in the federal bribery statute applies broadly to intangible as well as tangible payments.” Would dirt on Biden dug up by the Ukrainian government count as “anything of value”? Advocates of that interpretation, such as University of California, Irvine, law professor Rick Hasen, note that political campaigns routinely pay for opposition research, which is essentially what Trump is accused of seeking.

Illegal Campaign Contribution

Another way of looking at Trump’s interaction with Zelenskiy is that Trump was soliciting an illegal campaign contribution. “The best legal argument is that Trump committed a campaign finance crime if he solicited dirt on Biden and his son, as appears to be the case, regardless of whether there was any quid pro quo,” Hasen writes.

Under 52 USC 30121, it is illegal for a foreign national to make “a contribution or donation of money or other thing of value…in connection with a Federal, State, or local election.” The same statute makes it a crime to solicit such a contribution.

Like the bribery statute, the campaign finance law would apply to an arrangement between Trump and Zelenskiy only if the information discovered by a Ukrainian investigation of Biden and his son, Hunter, would qualify as a “thing of value.” And as Special Counsel Robert Mueller noted in his March report on Russian efforts to influence the 2016 presidential election, “No judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law.”

If there was a quid pro quo (military aid in exchange for an investigation of Biden), one could argue that the “opposition research” in this case was not “uncompensated.” But given the uncertainty, it would be hard to make the case that Trump knowingly violated the law, which is required for a criminal conviction.

Furthermore, if the law were understood to cover the sharing of information, it would effectively criminalize constitutionally protected speech. Mueller noted that “such an interpretation could have implications beyond the foreign-source ban,” such as limits on campaign contributions by Americans, and “raise First Amendment questions.”

Hasen is unimpressed by the First Amendment argument. “Thanks to Mueller,” he writes, “Trump can plausibly claim he has a First Amendment right to go to a foreign government to solicit—even potentially extort—valuable information against political opponents. If the First Amendment protected this conduct from Trump, why even hold elections?”

But if information counted as a campaign contribution, any American who shared a potentially damaging tip about a political candidate with that candidate’s opponent would be subject to the limits imposed by the Federal Election Campaign Act. That understanding of the law would create formidable enforcement challenges. How much would, say, rumors of domestic abuse or a list of old, offensive tweets be worth? How could the Federal Election Commission assign a dollar value to such information, which would be necessary to decide when someone had exceeded the limit on individual campaign contributions? It does not seem like a stretch to suggest that such uncertainties would have a chilling effect on speech protected by the First Amendment.

Does Any of This Matter?

Probably not. The Justice Department has taken the position that it cannot prosecute a sitting president, and impeachment does not require provable statutory violations. “High crimes and misdemeanors” include violations of the public trust that do not necessarily involve breaking the law. In this case, if the allegations against Trump are true, he has abused his power for personal gain and violated the separation of powers by impeding the distribution of congressionally approved military aid. Members of Congress might reasonably conclude that’s enough to justify impeachment, whether or not Trump committed a prosecutable crime.

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Former Trump Fan Joe Walsh Thinks the President Should Be Impeached

Editor at Large Matt Welch speaks with former Republican congressman and talk show host Joe Walsh, who is currently mounting a long-odds primary challenge against President Donald Trump. Walsh, who served one term in the House representing Illinois’ 8th District, used to be a Trump supporter. Now he says the president is a liar, a bully, and a racist who is completely unfit for office. The one-time Tea Party favorite called for Trump’s impeachment after the Mueller report came out earlier this year. 

Walsh confesses to his role as a hype man for Trump and to his own past racist comments about Barack Obama. He also talks about the decline of the Tea Party as a political force and the need for the GOP, which has gone astray on such issues as trade, debt, and spending, to embrace libertarian ideas.

Audio production by Ian Keyser and Regan Taylor.

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The Babylon Bee Satirizes the Absurdities of American Politics

Since its founding in 2016, Christian satire site The Babylon Bee has been regularly making fun of Christians, the left, the right, Trump, and various cultural fads. The site has steadily grown in popularity and now boasts about 10 million monthly page views. In addition to making poignant jokes, Kyle Mann, the site’s editor-in-chief, aims to use satire as a weapon to separate truth from fiction.

But less than five months after its inception, The Babylon Bee found itself being labeled as a “fake news site” by the prominent online fact-checker Snopes. Satirical articles from The Bee have now been fact-checked by Snopes more than 30 times.

Some of the more outlandish fact-checks include headlines such as “Democrats Demand Kavanaugh Submit To DNA Test To Prove He’s Not Actually Hitler”, “Ocasio-Cortez Appears On ‘The Price Is Right,’ Guesses Everything Is Free”, and “CNN Purchases Industrial-Sized Washing Machine To Spin News Before Publication.”

In an effort to justify fact-checking satire, Snopes republished an article from the academic commentary and analysis site The Conversation arguing that “too many people think satirical news is real.” While he’s not inherently opposed to fact-checking satire, Kyle Mann says that the original study was meant to observe the effects of satire in general, but when tweeting out their link of the study, Snopes specifically targeted The Babylon Bee.

What’s more, the study’s methodology was questionable: Instead of showing participants articles as they appeared online, satirical headlines were stripped of both context and comedy. For example, the Babylon Bee headline “CNN: ‘God Allowed the Mueller Report to Test Our Shakeable Faith in Collusion.’” was presented to participants as “CNN news anchor Anderson Cooper said his belief that Trump colluded with Russia is unshakable; it will not change regardless of statements or evidence to the contrary.”

Reason’s John Osterhoudt sat down with Mann to discuss the Snopes criticism, his aspirations for the Bee, and why he believes that satire can divide what’s important from what’s not, revealing important truths about the world.

Produced by John Osterhoudt

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Trump’s Ukraine Call Was an Abuse of Power—and This Time, He Can’t Claim Ignorance or Inexperience

One method occasionally used to excuse or explain President Donald Trump’s behavior is an appeal to the president’s lack of formal political experience. After fired FBI chief James Comey testified back in 2017, for example, Paul Ryan, who was at the time the speaker of the House, said Trump is “new at this” and “not steeped in the ongoing protocols.” 

It is no doubt true that Trump’s background and temperament mean that he lacks a detailed understanding of the rules and protocols that govern the office he holds. Many of his actions can be viewed in that light. But in the case of Trump’s July call to Ukrainian President Volodymyr Zelensky, details of which have sparked a formal impeachment inquiry in the House, Trump and his defenders can’t reasonably claim he didn’t know that what he was doing would look bad.   

First, the call, in which the president repeatedly pressed Zelensky to investigate former Vice President Joe Biden and his son Hunter, came after nearly two years of investigation into allegations of Russian collusion during the 2016 campaign. The key question in that investigation was whether Trump worked with a foreign country in order to swing the election. If nothing else, Trump should have learned that attempting to work with a foreign nation in a way that could advance his own political fortunes would be problematic. 

Yet that is exactly what the whistleblower complaint about the Ukraine call says that Trump did. 

The complaint opens by alleging that the still-anonymous author, who worked in the U.S. intelligence community, has received “information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 election.” The report goes on to describe not only how Trump pressured Ukraine to investigate Biden, but how “multiple White House officials with direct knowledge of the call” were concerned that Trump used most of the call to “advance his personal interests.”

The president reportedly requested that Zelensky pursue the Biden investigation with the help of Trump’s personal attorney, Rudy Giuliani. According to the report, the White House officials who heard the call and relayed this information were “deeply disturbed by what transpired” and discussed what to do about the likelihood that “they had witnessed the President abuse his office for personal gain.” 

One might reasonably argue that this is all secondhand and anonymous and that it should be corroborated by those unnamed officials. But it also conforms to much of what we already know from other sources. A reconstruction of the phone call released by the White House this week confirms that Trump pressed the Biden issue during the conversation, following a request by Zelensky for Javelin missiles, implying an understood quid pro quo deal.  

And there should be no doubt that that Giuliani was pursuing a politically motivated investigation in Ukraine, because Giuliani has repeatedly admitted this himself

In May, for example, Giuliani denied that his actions were illegal but said this about his Ukraine dealings: “Somebody could say it’s improper. And this isn’t foreign policy—I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client, and may turn out to be helpful to my government.” 

This quote establishes that Giuliani—who, again, is not a government official, and thus not conducting ordinary diplomacy—was pursuing an investigation in Ukraine for the president’s personal benefit (“that information will be very, very helpful to my client”). 

It also offers another reason why Trump can’t claim innocence through inexperience: Even then, Giuliani, who was working closely on the Ukraine matter for Trump, understood that what he was doing could be viewed as improper. If the president’s lawyer and pointman on a project knows it’s shady, the president should too. 

If the whistleblower’s report is accurate, there is good reason to believe that loyalists within the Trump White House also understood that Trump’s behavior on the July call was improper, because they tried to shield it from scrutiny.

According to the report, White House officials were “‘directed’ by White House lawyers to remove the electronic transcript from the computer system in which such transcripts are typically stored” for sharing and other use within the administration. Instead, the records were to be stored in a more secretive and compartmentalized system designed for classified information. One White House official, the report says, described this as an “abuse” of the more secretive system, because the Ukraine call records did not belong there.  

The clear implication is that the call records were understood to be damaging, and thus were hidden from scrutiny. (Trump also personally ordered the delay of nearly $400 million in aid to Ukraine in advance of the call, possibly in violation of the constitutional separation of powers, and refused to provide an explanation.) 

Essentially, the report describes a cover-up. And you don’t cover up records of activity unless you understand that activity was wrong. 

The whistleblower’s account remains anonymous and uncorroborated. We need more firsthand, on-the-record information. But if the document is accurate, it strongly suggests that Trump knew that what he was doing was wrong and didn’t want others to find out. 

Finally, even if ignorance ends up being part of Trump’s explanation, it’s damning in a different way. An ignorance defense at this juncture would amount to an admission that the best case for Trump is that after more than two years as president, he still has no idea what he’s doing. 

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11 Cases Everyone Should Know from the Warren Court

Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should KnowThis post will focus on cases from the Warren Court.

Brown v. Board of Education (1954)

Bolling v. Sharpe (1954)

Williamson v. Lee Optical (1955)

 

Cooper v. Aaron (1958)

Sherbert v. Verner (1963)

New York Times v. Sullivan (1964)

Heart of Atlanta Motel v. U.S. (1964)

Katzenbach v. McClung (1964)

Griswold v. Connecticut (1965)

Loving v. Virginia (1967)

U.S. v. O’Brien (1968)

You can also download the E-Book or stream the videos.

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John Yoo Warns That Impeachment Would Undermine Presidential Power. That’s the Point.

The Berkeley law professor John Yoo warns that impeaching Donald Trump over his alleged solicitation of re-election assistance from Ukrainian President Volodymyr Zelenskiy could undermine presidential powers to conduct foreign policy and protect national security. Given Yoo’s expansive understanding of those powers, that prospect may count as an argument in favor of impeachment.

“The Constitution vests the president with the authority to conduct foreign policy and the responsibility to protect the nation’s security,” Yoo writes in a New York Times op-ed piece. “A president, even one who is possibly engaging in wrongdoing, must have confidence in the confidentiality of his communications or he will be unable to perform his constitutional duties and our international relations will fall victim to government by committee.”

Yoo worries that “if Congress could regulate presidential discussions with foreign leaders, presidents and foreign leaders would speak less candidly or stop making the calls altogether.” If that happened, he says, “United States foreign policy—approved by the American people at each election—would be crippled.”

But is Congress trying to “regulate presidential discussions with foreign leaders,” or is it investigating a possible abuse of presidential power, including an illegal usurpation of the legislative branch’s spending authority? If Trump put a hold on congressionally approved military aid with the intent of pressuring the Ukrainian government to dig up politically useful dirt on former Vice President Joe Biden, George Mason law professor Ilya Somin notes, he violated the separation of powers.

It would not be the first time. Yoo himself has criticized Trump for overstepping his constitutional authority by trying to build a border wall that Congress has refused to fund, by suggesting he might pay for the wall by imposing tariffs on Mexico, and by threatening to unilaterally withdraw from the North American Free Trade Agreement.

“The framers believed that ‘high crimes and misdemeanors’ included a president who used his foreign affairs powers for personal or political gain,” Yoo concedes. To investigate whether Trump has done that, he says, “A special congressional committee could review classified information in secret and bring United States and foreign officials to testify under oath. The House could meet any stonewalling by cutting intelligence, military and diplomatic funding.”

And then what? If Congress confirms that Trump has in fact “used his foreign affairs powers for personal or political gain,” that would be an impeachable offense, according to Yoo. Yet he resists the logical conclusion that an impeachable offense should result in impeachment.

“The founders believed that impeachment should come only as a last resort,” Yoo says. But the quote he uses to back up that claim suggests nothing of the sort: “At the end of four years, the president may be turned out of his office, Gov. Edmund Randolph said in 1788 as Virginia weighed ratifying the Constitution. ‘If he misbehaves he may be impeached, and in this case he will never be re-elected.'” That hardly means Congress has to wait for the next election instead of trying to remove a president who has committed an impeachable offense.

“Democratic presidential candidates are calling for impeachment,” Yoo writes. “But they should realize that they themselves remain the framers’ primary remedy for presidential abuses of power. The Constitution trusts the American people, acting through the ballot box, to render judgment on President Trump. Democrats should trust the framers’ faith in the American people, too.”

While there may be sound political reasons to choose the course that Yoo recommends, there are also sound constitutional reasons not to simply let voters decide Trump’s fate. Even if an impeachment vote does not result in conviction by the Republican-controlled Senate (as seems pretty certain at this point), it would make a statement about limits on presidential power that even Yoo acknowledges. If the discovery of impeachable offenses is not a good reason to impeach a president, what is the point of the impeachment power?

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Whistleblower Report Alleges Trump Used Presidential Power for Personal Gain

“I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election…” The whistleblower complaint against President Donald Trump that has fueled an impeachment inquiry was made public this morning.

“This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rivals,” says the complaint, dated August 12. The writer was “not a direct witness to most of the events described” but found colleagues’ accounts “to be credible because, in almost all cases, multiple officials recounted fact patterns that were consistent with one another.”

It goes on to state that there were about a dozen people on the July 25 call between Trump and Ukrainian President Volodymyr Zelenskiy. According to the complaint, this was expected to be a “routine” call and White House officials were subsequently instructed to “lock down” records of the conversation. It also says that efforts related to Zelenskiy and to digging up potential Biden dirt started long before July. (Read the whole complaint here.)

Records viewed by investigative journalist Murray Waas suggest that the initial impetus for Trump’s interest in Ukraine was to suss out potential fodder for pardoning Paul Manafort and discrediting the special investigation being undertaken by Robert Mueller.

“Attorneys representing Trump and Manafort respectively had at least nine conversations relating to this effort, beginning in the early days of the Trump administration, and lasting until as recently as May of this year,” Waas claims in The New York Review of Books. He continues:

Through these deliberations carried on by his attorneys, Manafort exhorted the White House to press Ukrainian officials to investigate and discredit individuals, both in the US and in Ukraine, who he believed had published damning information about his political consulting work in the Ukraine. A person who participated in the joint defense agreement between President Trump and others under investigation by Special Counsel Robert Mueller, including Manafort, allowed me to review extensive handwritten notes that memorialized conversations relating to Manafort and Ukraine between Manafort’s and Trump’s legal teams, including Trump’s personal attorney, Rudy Giuliani.

As personal lawyer and all-around fixer, Giuliani fills roles Manafort and Michael Cohen previously filled for Trump.

“The new disclosures in this story underscore how this scheme originated in the long-running coordination between Trump, Giuliani, and Manafort to frustrate the Mueller investigation,” Waas sums up.

Since yesterday, when a transcript of Trump’s phone call with Zelenskiy was released, Zelenskiy himself has weighed in and more information about the scope of Giuliani and Trump’s meddling has come out.

ABC reported yesterday that Serhiy Leshchenko, a former Zelenskiy advisor, said “it was clear” that Trump would only talk to Zelenskiy “if they will discuss the Biden case. This issue was raised many times. I know that Ukrainian officials understood.” But Leshchenko apparently disputes this:

For the Ukrainian president’s part, he said on Wednesday:

I’m sorry, but I don’t want to be involved in…elections of USA….We had, I think, a good phone call. It was normal, we spoke about many things, and you read it that nobody pushed it, nobody pushed me.

There’s some room for interpretation in the summary of the Zelenskiy phone call that the White House put out yesterday, but it certainly isn’t the good look that Trump seems to think it is.

One element that peaked interest was Trump’s seemingly random mention of the private security firm Crowdstrike (“I would like you to find out what happened with this whole situation with Ukraine, they say CrowdStrike…I guess you have one of your wealthy people….The server, they say Ukraine has it”) and the company’s subsequent insistence that it has no idea why it was invoked. Crowdstrike was the firm hired by the Democratic National Committee (DNC) to examine its servers, and the group that concluded “two separate Russian intelligence-affiliated adversaries” had been behind the infiltration and distribution of the DNC emails.

Trump’s interest in Crowdstrike seems to be for basically bonkers conspiracy-theory reasons. First, he has repeatedly claimed the company is based in Ukraine when it’s actually located in California, with no apparent connection to Ukrainians. Second, Trump appears to buy into a conspiracy theory surrounding Crowdstrike, the DNC emails, Seth Rich, and a secret server.

“Not only has he endorsed this nonsensical theory on Twitter and in press conferences,” writes Andy Kroll, “but we now know he does it in private calls with foreign leaders and is using the power of the oval office to press for actual investigations.”

In August, Texas financial advisor and conservative commentator Edward Butowsky filed a federal lawsuit against Crowdstrike, the Democratic National Committee, law firm Perkins Coie, and others. The suit alleges that the law firm was hired by the DNC to hide “the Russian collusion hoax” and that Perkins Coie in turn “retained CrowdStrike for the purpose of creating the false narrative that the Russian government had hacked the DNC’s servers.”


QUICK HITS

  • The Washington Post‘s Glenn Kessler factchecks “Trump’s repeated suggestions that Hunter [Biden] struck it rich with a sketchy deal in China.”
  • Judge Andrew Napolitano weighs in:

  • Rep. Tulsi Gabbard (D–Hawaii) continues to strike a different note on impeachment than her Democratic presidential competitors:

  • The Anti-Defamation league has added the OK hand gesture “along with several others on Thursday to its longstanding database of slogans and symbols used by extremists.”
  • The vaping madness continues:

“The War on Whores” Documentary: Celebration and Panel Discussion

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Judge Amy Coney Barrett’s “Canards of Contemporary Legal Analysis”

In October 1989, Justice Antonin Scalia delivered a lecture on “Assorted Canards of Contemporary Legal Analysis” at the Case Western Reserve University School of Law. Last week, Judge Amy Coney Barrett, a former Scalia clerk, revisited Justice Scalia’s famed lecture in her own talk at CWRU.

In “Assorted Canards of Contemporary Analysis Redux,” Judge Barrett added to Justice Scalia’s list of canards, with a particular focus on addressing common misconceptions and caricatures of textualism. A video of the remarks is below. An article based upon the talk will be published in the Case Western Reserve Law Review.

Both Justice Scalia’s and Judge Barrett’s lectures were part of the Sumner Canary Memorial Lecture series at CWRU, established to honor the memory of Sumner Canary, a lion of the Cleveland legal community.

Last year’s lecture was delivered by Judge Joan Larsen, and was recently published in the Case Western Reserve Law Review. 

Previous lecturers have also included then-Judge Neil Gorsuch, Judge Diane Sykes, then-Judge Brett Kavanaugh, and Judge Bill Pryor, and non-jurists such as Neal Katyal, Jack Goldsmith, and Randy Barnett. A full list of prior Canary lectures, including links to video (when available) and published versions of the remarks is available here.

It is an honor to be the current curator of this lecture series, and the law school is grateful to Nancy Canary for the support that makes this lecture series possible.

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From Blaming God to Blaming Parents

You didn’t hear many people saying that “it was God’s will” a few years ago when a kid fell into the gorilla exhibit at the Cincinnati Zoo. Instead, you saw memes featuring the gorilla, Harambe, and the words “I’m dead because a bitch wasn’t watching her child.”

Sympathy for the gorilla, who was shot and killed, makes total sense. Outrage against the mom doesn’t, unless you think she should have been on constant high alert against this and every other one-in-a-billion accident.

Unfortunately, that’s how we’ve begun to think. Alan Levinovitz, a professor of religious studies at James Madison University, has a theory for why that is. Religion, he says, used to govern almost every aspect of our lives: what we ate, read, said, and wore—and how we raised our kids. But in a society where, for many, religion’s authority covers an ever-shrinking area of life, we’re left to come up with our own rules, taboos, and punishments. In some ways, our secular codes are more harsh and demanding than religions were.

Religion can explain a tragedy as God’s will, or as karma coming around. “The burden is outsourced to God,” says Levinovitz. If you’re suffering here on Earth, well, you’ll get your reward in heaven. Or in karmic systems, if you’re suffering, it’s thanks to a bad past life. Be good now, and next time around? Blue skies. “You didn’t have to feel guilty for your own suffering,” Levinovitz says. God was in charge and would even the score later on.

But as religiosity shrank, a tragedy—or even a simple accident—became incomprehensible and unredeemable. Why did it happen? What can make it right? How can we give it meaning? If we can’t tell ourselves that “the Lord works in mysterious ways,” all of us, but especially parents, have only three options.

The first is to try to prevent all accidents, no matter how minor and no matter what the cost of prevention. If perfection isn’t coming in the next life, by golly, we’d better make it happen here.

The second is to blame a human whenever an accident does happen, even when it’s completely random—the kind of thing we used to call an “act of God.”

The third is to make a new ritual (private or legal) that we will practice forevermore as a secular sacrifice to safety.

Parents feel it is their new job to be omniscient, “but there’s devastating guilt that comes with a vision of the world in which knowledge plus vigilance equals perfect safety,” Levinovitz says. If anything goes wrong, “it means you weren’t vigilant enough. So what do we do? We track our children more closely than ever before.” With a couple of iPhone taps, it’s possible to know not only where your kid is but who he has texted, what he ate for lunch, how he did on his Spanish quiz, and whether he’s running a fever.

Now let’s say something bad does occur. Your child gets hurt. What happens next? Blame. It’s easier to blame someone than to accept the idea that “tragedy is just kind of built into reality,” Levinovitz says, “and it’s nobody’s fault, and there’s no redeeming value to it. It just is what it is.”

That’s not to say we shouldn’t strive to be responsible. “It’s really about recognizing that there’s no such thing as a world in which everything is entirely free from risk and that striving for that world can actually be dystopic.”

When something terrible happens to a child, often there is a rush to pass a law in his name that we believe will prevent the bad thing from happening again. We do this no matter how anomalous the tragedy or how pointless, in reality, the law.

Meanwhile, at an individual level, parents rush to create new, often elaborate, safety rituals. They will take their kids out of the car rather than letting them wait for five minutes, for instance, because another child died waiting in a car for five hours. Then society deems the parents who don’t perform these rituals impure, even demonic.

Without God to absolve us, redeem our tragedies, and make everything right at some future date, we’re stuck sorting out the unfathomable mess known as reality on our own. We are not making it easy on anyone. Especially parents.

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