Month: January 2020

• Tommy. CBS. Thursday, February 6, 10 p.m.
• Katy Keene. The CW. Thursday, February 6, 8 p.m.
• Indebted. NBC. Thursday, February 6, 9:30 p.m.

These days, Paul Attanasio is mainly known for writing extraordinarily literate movies and TV series like Quiz Show and Homicide: Life in the Streets. (Well, he does the self-descriptive Bull, too. For the sake of my paragraph construction, let’s ignore that one.)

But back in the day, when he was lead film critic for the Washington Post, Attanasio’s reputation was based more on his extraordinary ability to smooch the derriere of the industry he was covering. In 1986, a Washington literary group that called itself the Osric Dining Society—after Osric, the simpering courtier of Hamlet, labeled variously over the years by critics as “a vain and idle babbler” and “an airy, affected insect”—even gave Attanasio one of its awards honoring “flattery, deference and self-serving vacuity” for a profile he wrote of Meryl Streep. (“You feel that Meryl Streep, simply with her presence, is telling you the truth, not just about her life, but about your own.”) Told of his award, Attanasio asked if it came with a cash prize.

Certainly Attanasio isn’t going to get any prizes for butt-kissing for his newest series, CBS’ Tommy, a funny, horrifying, and generally thrilling account of a female Los Angeles police chief’s rocky relations with the city’s scummy, thieving (and, of course, male) power brokers. But Tommy may inspire an overdose of flowery flattery, not so much for Attanasio’s scripts—though they’re fine pieces of work—but for the show’s star, Edie Falco, making a welcome return to television as the harried, harassed and heroic Chief Abigail Thomas.

No television actress of the past two decades has been more important than Falco. As the morally troubled but hopelessly compromised mob wife of HBO’s The Sopranos and the dedicated nurse throwing her career, marriage and, eventually, life away for drugs on Showtime’s Nurse Jackie, Falco has created two of the most complicated, contradictory characters in television history.

It’s much too soon to know whether Chief Thomas—known to both friends and her plentiful foes as Tommy—will turn out to be as fatally flawed as Carmella Soprano or Nurse Jackie Payton. But she’s fascinatingly complex. A second-generation New York cop, Tommy’s career imploded when she broke the jaw of a Weinsteinian superior officer. She got the Los Angeles job in a hurried attempt to clean up the LAPD image after a massive sex scandal involving hookers, underage girls and a bunch of boss-underling affairs of dubious consensuality.

But the sexual profligacy in the police department was actually a mild problem compared to the entrenched political and financial corruption at city hall. And the pols there see Tommy’s ignorance of and indifference to the treacherous local political currents as a potential threat. Their moles infest the police department, where the old guard still dreams of a counterrevolution. It’s soon apparent that the new chief’s principal adversaries will not be criminals in the street but the ones in her own building.

Tommy has the toughness you’d expect from somebody who worked her way up from walking a beat in the Bronx. But she also has personal vulnerabilities: divorced, estranged from her adult daughter, and of questionable gender orientation—literally, in the view of the bosses at city hall; “Did you ask her about her sexuality?” one demands of the mayor. She’s old enough to be baffled by some of the tech toys popular with her younger officers and horrified by others—particularly some AI profiling software that, her intelligence officers boast, will soon enable them to arrest criminals who haven’t acted yet. And hence aren’t criminals. Whatever credibility she might have with her officers from her years on the street is erased by the fact that the street was in New York and not Los Angeles; she’s an outsider who’s still complaining that you can’t find good bagels or pizza in California. Yet she knows she has to shrug it all off.

Tommy‘s scripts are imaginative, using ripped-from-the-headlines stuff like #MeToo and immigration in unexpected ways. And the supporting cast—including Vladimir Caamaño (Superstore) as the chief’s amusingly wise-ass driver, Australian TV actress Adelaide Clemens as her unnervingly ambitious press spokeswoman, and veteran character actor David St. Louis as her cuckolded ex-husband (he produces a streaming cop drama about a zombie detective whose signature line is “You have the right to remain…dead!”)—is uniformly excellent.

But the straw stirring this flavorful drink is Falco, whose magnetism demands unflinching attention. Whether she’s dressing down a rogue cop who busted up an ICE raid, delicately tiptoeing a political high-wire in a tense conversation with the mayor, or even just eying her waistline with annoyance (preferred diet dinner: a plate of mashed potatoes and a bottle of sauvignon blanc), she radiates an obdurate refusal to surrender to anybody else’s agenda. Tommy may not share much with Carmella or Jackie, but all three of them could take life’s punches and throw them back. Bones will be broken in the process, and Falco’s not afraid of risking her own.

Elsewhere in sight as broadcast TV rolls out its winter season is Katy Keene, The CW’s latest addition from the Archie comic-book universe. Though a cousin of the network’s Riverdale (they share an executive producer, Roberto Aguirre-Sacasa), Katy Keene couldn’t be more different in tone. It’s no tour of the grim underbelly of suburbia, but an exuberantly roller-coaster if-you-can-make-it-there tale of young women taking on New York, sort of a Sex And The City prequel, minus the digressions into anal sex. (Although when the Katy Keene character started popping up in Archie comics in the 1940s, she was drawn to look like Bettie Page, so who knows what might happen in season five?)

Lucy Hale (Pretty Little Liars) plays cute-as-a-button Katy, who wants to be a fashion designer but pays the bills as a department-store personal shopper. Ashleigh Murray (Riverdale) plays cute-as-a-button Josie—yes, of the now-washed-up Josie & The Pussycats—who’s trying to make it in the music biz. Julia Chan (Saving Hope) plays cute-as-a-button Pepper Smith, a would-be It Girl who pops up in all the blogs despite lacking any discernible talent except a posh accent and, of course, being cute-as-a-button. And Jonny Beauchamp (Penny Dreadful) plays cute-as-a-gender-fluid button Jorge, whose dreams of Broadway have just been smashed by a director who didn’t think he could play butch. (“Apparently I’m too gay for Broadway!” Jorge anguishes. “Who even knew that was possible?”)

Katy Keene lasciviously rolls around in every threadbare cliché of showbiz melodrama and then some. For instance, here’s Josie’s first day in New York: She’s turned down for about 10,001 waitressing/barista/being-cute-as-a-button jobs, then gets discovered by a wildly rich and famous record producer while singing for a crowd of randos in Washington Square Park, cuts a fabulous demo, only to have it savagely rejected by a nasty corporate cabal led by the producer’s evil twin sister, and storms out swearing to quit the music business forever!

The song she’s singing while being discovered, by the way, is “Spanish Harlem,” a big hit in 1960 that’s played on Pandora and Spotify slightly less often than Gregorian chants. That’s just one of the weirdly anachronistic pop-culture references in a show about kids who, if they saw the Twin Towers going down on TV on Sept. 11, did so in diapers. Do Gen Z adults really say they want to be the next Diana Ross? And do music producers really interview potential artists by asking, “Shirelles or Ronettes?”

Peculiar tinge of American Bandstand-ism aside, there’s nothing really wrong with Katy Keene as long as you’re, say, 22, and don’t know all those clichés are not only clichés but have been for the past 90 years or so. The cast is affable (and, did I mention, cute as a button?) and melodrama, whatever you may say about it, has been entertaining people since the days when Osric was a character and not a literary society.

For a show that really ought to be horsewhipped, have a look at NBC’s alleged sitcom Indebted, which stars the animated corpses of Fran Drescher and Steven Weber as broke Baby Boomers who have to move back in with their son and his wife (Adam Pally, The Mindy Project, and Abby Elliott, Saturday Night Live). My only question after watching the pilot was, are they joking? And the answer was, no, not even once.

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Harvard law professor Alan Dershowitz, one of the attorneys representing Donald Trump in his Senate trial, complains that his critics are misrepresenting his position on quid pro quos and impeachment. “They have mischaracterized my argument as if I claimed that a president who believes his reelection is in the national interest can do anything,” Dershowitz writes in The Hill. “I said nothing like that.”

It is true that Dershowitz never said a president “can do anything” to get re-elected. He made it clear, for example, that a president who commits crimes to get re-elected—Richard Nixon, say—could be impeached. But Dershowitz’s comments during Wednesday’s question-and-answer session went further than he admits by implying that the desire to stay in office cannot count as a corrupt motive that renders otherwise legal conduct an impeachable abuse of power.

Here is the question to which Dershowitz was responding: “As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?”

Dershowitz rightly responded that a quid pro quo involving a foreign government is not necessarily improper. If a president conditioned aid to Israel on a halt to settlement activity or conditioned aid to the Palestinian Authority on an end to payments for the families of terrorists, he said, “there is no one in this chamber who would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal.”

That last part is tautological, of course, and it elides the question of whether a president’s conduct can be impeachable even if it is not illegal. But Dershowitz conceded that the motive for a quid pro quo matters. “There are three possible motives that a political figure can have,” he said. “One, a motive in the public interest, and the Israel argument would be in the public interest; the second is in his own political interest; and the third, which hasn’t been mentioned, would be in his own financial interest, his own pure financial interest, just putting money in the bank.”

As an example of a quid pro quo motivated by personal financial interests, Dershowitz described “an easy case” in which “a hypothetical president” tells a foreign government, “Unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds.” The motive in that situation, he said, “is purely corrupt and in the purely private interest.” Such a quid pro quo also would clearly violate the federal bribery statute that makes it a crime for a U.S. government official to solicit “anything of value…in return for…being influenced in the performance of any official act.”

By contrast, Dershowitz said, when a president offers a quid pro quo “in his own political interest,” that is “a complex middle case,” because the president might reason this way: “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.”

In his trial comments, his piece in The Hill, and his self-defense on Twitter, Dershowitz emphasized cases involving “mixed motives”: The president does something he believes is in the national interest while recognizing that it will also benefit him politically. Dershowitz warned that it would be dangerous for Congress to constantly parse the president’s motives in such situations with an eye toward impeaching him, since so many decisions fall into that category. “Everybody has mixed motives,” he told the senators, “and for there to be a constitutional impeachment based on mixed motives would permit almost any President to be impeached.”

But the articles of impeachment do not allege that Trump had mixed motives when he pressured the Ukrainian government to announce an investigation of former Vice President Joe Biden. While Trump claims he was concerned about rooting out official corruption in Ukraine, the Democrats say, that is merely a post hoc cover for his true motive: discrediting the candidate he viewed as the biggest threat to his re-election. Dershowitz’s argument that a president might sincerely and legitimately equate his re-election with the national interest suggests that the Ukraine quid pro quo was perfectly proper even if Trump’s sole aim was tarring a political rival.

“Every public official whom I know believes that his election is in the public interest,” Dershowitz said. “Mostly, you are right. Your election is in the public interest. If a president does something which he believes will help him get elected—in the public interest—that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz implied that a quid pro quo can be impeachable only if it is “unlawful.” According to the Government Accountability Office, Trump’s freeze on military aid to Ukraine was unlawful, since it violated the Impoundment Control Act. And as George Mason law professor Ilya Somin has noted, Trump’s quid pro quo arguably violated a federal extortion statute. That law applies to someone who “knowingly causes or attempts to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, by means of the denial or deprivation, or the threat of the denial or deprivation, of…any payment or benefit of a program of the United States” if that payment or benefit “is provided for or made possible in whole or in part by an Act of Congress.”

While the articles of impeachment do not allege violations of these or any other laws, Dershowitz concedes that “criminal-like behavior akin to treason or bribery” is impeachable even if it’s not “a technical crime with all the elements.” Defending his position on Twitter yesterday, he again implied that impeachment does not require “unlawful” conduct. “A president seeking re-election cannot do anything he wants,” he said. “He is not above the law. He cannot commit crimes. He cannot commit impeachable conduct.” The category of “impeachable conduct,” in other words, is broader than the category of “crimes.”

That means some abuses of presidential power, such as a pre-emptive self-pardon or politically motivated criminal investigations, can be grounds for impeachment even if they are technically legal. Motives matter. But if a politician’s desire to keep his job counts as a legitimate motive because he believes his re-election is “in the public interest,” noncriminal abuses of power aimed at avoiding electoral defeat can never be impeachable. That seems to be Dershowitz’s position, and it means that Congress has no authority to remove a president who abuses his powers so he can continue to exercise those powers.

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Conservative author Heather Mac Donald spoke at Emory University on Tuesday—despite the best efforts the student government’s chief of staff, who filed a petition arguing that the event violated “the right of freedom from discrimination by any student group.”

This petition was dismissed, since Mac Donald’s talk was not funded by student fees and therefore was free of the non-discrimination requirement.

But many students agreed that Mac Donald’s words were discriminatory and a threat to public safety. They gathered in a “safe space” while she spoke, watching her speech on a video feed from a remote location. The Emory Wheel reports:

Simultaneously, downstairs, a group of more than 80 students, faculty and staff members crowded into a lecture hall to watch a livestream of Mac Donald’s remarks. This event, hosted by Emory NAACP, the Caucus of Emory Black Alumni (CEBA) and Rollins Earn and Learn, was advertised as “a safe space for students to be able to express their reaction to what Heather Mac Donald has to say.”

CEBA President Natalie Gullatt (11C), who helped organize the response event, emphasized the need for an environment for individuals affected by Mac Donald’s inflammatory remarks. Gullatt said that the two events were held at the same time to reduce attendance at Mac Donald’s lecture.

“We don’t want to give her any type of ammunition or any type of way to use anything that’s done tonight to help propel her message,” Gullatt said.

Mac Donald is the author of such provocative as The War on Cops and The Diversity Delusion. The latter argues that higher education administrators are wrong to focus on nominal diversity based on skin color, gender, sexual preference, and so on. She was invited to speak at Emory by the College Republicans.

Emory’s administration admirably defended the conservative students’ right to feature her. This did not sit well with some others:

Jocelyn Stanfield (20C), an attendee of the response event, was among the first to speak out against Mac Donald’s visit and contacted the University to cancel the event, who cited their free expression policy in defense. She believes that the administration should have done more to assist minority communities by “reaching out and making sure [they] feel supported.”

“A lot of minorities already don’t feel comfortable in an all-white space or a white-majority environment,” Stanfield said. “We just want them to know that they have a voice here, and the majority of the students on campus disagree with what Heather Mac Donald is proclaiming.”

Students should feel welcome to disagree with Mac Donald. (They would find plenty of company here at Reason.com.) They are free to feel unsafe, too. But life outside Emory is going to be difficult indeed if mere words are enough to make them run for cover.

For more about students and safe spaces, check out my book, Panic Attack: Young Radicals in the Age of Trump.

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During the debates surrounding the Mueller investigation into possible Russian interference with the 2016 presidential elections, we heard a great deal about presidential use of “otherwise lawful powers.” There were those who thought President Trump had committed criminal obstruction of justice in his efforts to bring the investigation to a rapid conclusion. Trump had not done the sort of things that any private individual might do to obstruct justice, such as tampering with documents or concealing evidence. Rather Trump had done things that only a sitting president could do. He had used, or contemplated using, the powers of his office to cut short the investigation by, for example, firing FBI director James Comey.

This gave rise to the difficult constitutional question of whether Congress could ever make it a criminal offense for a president to use his otherwise lawful powers as president. Robert Mueller thought that Congress probably could. William Barr thought Congress probably could not. I tended to agree with the attorney general on this point.

This does not mean that the president is beyond any accountability for how he uses his powers. As both I and the attorney general emphasized, the proper places to hold a president to account for abuses of his otherwise lawful powers are at the ballot box and in a court of impeachment.

Alan Dershowitz and my Volokh co-blogger Josh Blackman have contended that “otherwise legal conduct” cannot become an impeachable abuse of power. Otherwise, they say, anything that an ordinary politician might do could place them in the impeachment crosshairs. They would extend the argument that government officers cannot be criminally prosecuted for otherwise legal actions to also hold that they cannot be impeached for such actions.

This is a very sweeping doctrine, and one that is at odds with how the impeachment power was discussed and applied from the founding to today. It is ultimately subversive of the constitutional system of checks and balances.

Presidents, as well as other government officials, are given vast discretionary powers. Some of that discretionary power can and should be pared back through statute, but a great deal of discretion is unavoidable and even desirable and quite a lot is directly vested in the president by the Constitution itself. We hope that officers will use that discretion wisely, but they might use it foolishly. They might even abuse it in a host of ways.

The question then becomes what can or should be done about officers who abuse their power, who act within the scope of their otherwise lawful power but who do so in intemperate, imperious, despotic, or dangerous ways. The effective answer offered by the Dershowitz theory is that one should wait until the next election—if there is a next election that is relevant to that particular abusive officer—and replace the officer. In the meantime, the country should simply suffer whatever damage the abusive officer is willing to mete out.

This is contrary to the very purpose of including the impeachment power in the constitutional scheme. The framers recognized that the president, and other government officers, might abuse the discretionary power with which they are entrusted and they might do so in ways that are simply intolerable. A president who brazenly granted pardons to minions who engaged in criminal activity to advance the president’s own goals should not be tolerated until election day. A president who categorically refused to cooperate in any way with congressional investigations into misconduct in the executive branch need not be tolerated for another four years. A president who sweepingly refused to enforce laws with which he disagreed under the cloak of prosecutorial discretion need not be left in the position of chief executive. A president who rashly used American military power to assassinate American citizens and foreign leaders abroad or invited cataclysmic war need not be left as commander in chief. A president who stubbornly refused to use military force to protect American citizens and territory from foreign military aggression need not be left to serve out his term. A president who directed executive branch officials to use all available lawful tools to harass and intimidate their political enemies without any credible rationale for doing so need not be left in office to continue his campaign of governmental harassment.

It is not easy to impeach and remove any government officer, let alone a president. A partisan majority in the House of Representatives might be able to abuse the impeachment power and convert it into a weapon of factional politics. Convincing a supermajority in the Senate to do the same has proven to be an insurmountable obstacle to bringing such an abuse to fruition. The supermajority requirement in the Senate is the ultimate check on the congressional use of the impeachment power.

Congress too might abuse its discretion in exercising its lawful power. It might impeach and even remove an officer without adequate justification. Ultimately, it will be up to the voters to determine whether Congress has used the impeachment power inappropriately. But the constitutional framers believed that if accusers could convince a supermajority of the Senate that an officer has grossly abused his or her otherwise lawful powers, the nation would be safer if those electorally accountable representatives of the people could take steps to remove that officer from power before too much damage was done.

An impeached officer might offer a variety of explanations to senators to try to convince them to acquit. A president might claim that he was in fact acting in the public interest. A president might claim that he had not realized that such an action would be seen as abusive. A president might claim that even if the actions that he took were misguided and wrong, they were not so consequential as to justify an early end to his tenure in office. A president might argue that the type of actions in dispute can and should be considered by the voters at the next election. A president might claim that the abusive actions in question had already been remedied and presented no further danger to the nation. If enough senators are convinced by such explanations, they can vote to acquit and let the voters judge whether they have made the right decision.

What a president should not do—and what senators should not accept as a viable defense—is claim that the use of his discretionary authority, no matter how tyrannical or dangerous, is beyond the reach of the impeachment power.

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