New Zealand Expels US Spy With Broken Nose And Black Eye, After “Incident”

It’s not just US-Russian relations that have devolved to the level of spontaneous diplomat expulsion. According to Reuters, New Zealand has expelled an attache at the U.S. Embassy after Washington refused to waive his right to diplomatic immunity in relation to a police investigation of a potentially serious crime, after an “incident” which gave him a broken nose and a black eye, media and authorities said. New Zealand Television said the man had worked alongside New Zealand’s intelligence service, the Government Communications Security Bureau, which is a member of the so-called Five Eyes signals-intelligence alliance binding the U.S., the U.K., Australia, New Zealand and Canada.

In other words, the unnamed diplomat was most likely a US spy – which would explain why the government refused to strip him of his immunity –  who got into a fight, and quickly vacated the country.

New Zealand police said they responded to the incident near the capital Wellington on March 12 involving an employee of the U.S. Embassy. They did not say what work the employee did or give any other details. The U.S. government later declined a police request to waive the employee’s diplomatic immunity, the New Zealand Foreign Ministry said on Monday.

“Officials in Wellington and our Ambassador in Washington, D.C. have clearly conveyed to the United States the expectation that foreign diplomats obey the law in New Zealand and are seen to face justice in New Zealand,” Foreign Affairs Minister Murray McCully said in a statement Monday.


New Zealand Foreign Minister Murray McCully announced the expulsion of the U.S. diplomat Monday

According to the WSJ, details of the alleged crime haven’t been revealed. Local media reports said the diplomat was a technical attaché who left the country last week with a broken nose and black eye after an altercation in Lower Hutt, a Wellington suburb. The man’s identity and alleged injuries couldn’t immediately be confirmed.

A U.S. Embassy spokesman in Wellington wouldn’t comment on the investigation, but said the mission is communicating with New Zealand authorities. “We take seriously any suggestion that our staff have fallen short of the high standards of conduct expected of U.S. government personnel,” he said. Mr. McCully said the U.S. State Department had assured the government that all the allegations made against the diplomat would be fully investigated.

 

Under the 1961 Vienna Convention on Diplomatic Relations, the 187 signatory nations guarantee that diplomatic, administrative and technical staff of embassies and other missions will receive “immunity from the criminal jurisdiction of the receiving State.” A New Zealand Police spokeswoman said officers were called to an incident in Lower Hutt’s Tirohanga area early on March 12, by which time the man had already left. Serious crimes, she said, carry a potential jail term of at least 12 months.

The New Zealand Herald at the weekend confirmed the man was an embassy attache and said he had left country with a broken nose and black eye. A spokeswoman for the U.S. Embassy said it was in touch with New Zealand authorities.

“We take seriously any suggestion that our staff have fallen short of the high standards of conduct expected of U.S. government personnel,” the spokeswoman said.

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Shiller’s CAPE: Is It Really Just B.S.? – Part 1

Authored by Lance Roberts via RealInvestmentAdvice.com,

One of the hallmarks of very late stage bull market cycles is the inevitable bashing of long-term valuation metrics. In the late 90’s if you were buying shares of Berkshire Hathaway stock it was mocked as “driving Dad’s old Pontiac.” In 2007, valuation metrics were being dismissed because the markets were flush with liquidity, interest rates were low and “Subprime was contained.”

Today, we once again see repeated arguments as to why “this time is different” because of the “Central Bank put.” 

First, let me just say that I have tremendous respect for the guys at HedgEye. They are insightful and thoughtful in their analysis and well worth your time to read. However, a recent article by HedgEye made a very interesting point that bears discussion.

“Meanwhile, a number of stubborn bears out there continue to make the specious argument that the U.S. stock market is expensive. ‘At 22 times trailing twelve-month earnings,’ they ask, ‘how on earth could an investor possibly buy the S&P 500?’

 

The answer is simple, really. Valuation is not a catalyst.”

They are absolutely right.

Valuations are not a catalyst.

They are the fuel.

But the debate over the value, and current validity, of the Shiller’s CAPE ratio, is not new. Critics argue that the earnings component of CAPE is just too low, changes to accounting rules have suppressed earnings, and the financial crisis changed everything.  This was a point made by Wade Slome previously:

“If something sounds like BS, looks like BS, and smells like BS, there’s a good chance you’re probably eyeball-deep in BS. In the investment world, I encounter a lot of very intelligent analysis, but at the same time I also continually step into piles of investment BS. One of those piles of BS I repeatedly step into is the CAPE ratio (Cyclically Adjusted Price-to-Earnings) created by Robert Shiller.”

Let’s break down Wade’s arguments against Dr. Shiller’s CAPE P/E individually.

Shiller’s Ratio Is Useless?

Wade states:

“The short answer…not very. For example, if investors followed the implicit recommendation of the CAPE for the periods when Shiller’s model showed stocks as expensive they would have missed a more than quintupling (+469% ex-dividends) in the S&P 500 index. Over a shorter timeframe (2009 – 2014) the S&P 500 is up +114% ex-dividends (+190% since March 2009).”

Wade’s analysis is correct.  However, the problem is that valuation models are not, and were never meant to be, “market timing indicators.”  The vast majority of analysts assume that if a measure of valuation (P/E, P/S, P/B, etc.) reaches some specific level it means that:

  1. The market is about to crash, and;
  2. Investors should be in 100% cash.

This is incorrect.

Valuation measures are simply just that – a measure of current valuation. More, importantly, it is a much better measure of “investor psychology” and a manifestation of the “greater fool theory.”

If you “overpay” for something today, the future net return will be lower than if you had paid a discount for it.

Think about housing prices for a moment as shown in the chart below.

There are two things to take away from the chart above in relation to valuation models.  The first is that if a home was purchased at any time (and not sold) when the average 12-month price was above the long-term linear trend, the forward annualized returns were significantly worse than if the home was purchased below that trend. Secondly, if a home was purchased near the peak in valuations, forward returns are likely to be extremely low, if not negative, for a very long time.

This is the same with the financial markets. When investors “pay” too much for an investment, future returns will suffer. “Buy cheap and sell dear” is not just some Wall Street slogan printed on a coffee mug, but a reality of virtually all of the great investors of our time in some form or another.

Cliff Asness discussed this issue in particular stating:

“Ten-year forward average returns fall nearly monotonically as starting Shiller P/E’s increase. Also, as starting Shiller P/E’s go up, worst cases get worse and best cases get weaker.

 

If today’s Shiller P/E is 22.2, and your long-term plan calls for a 10% nominal (or with today’s inflation about 7-8% real) return on the stock market, you are basically rooting for the absolute best case in history to play out again, and rooting for something drastically above the average case from these valuations.”

We can prove that by looking at forward 10-year total returns versus various levels of PE ratios historically.

Asness continues:

“It [Shiller’s CAPE] has very limited use for market timing (certainly on its own) and there is still great variability around its predictions over even decades. But, if you don’t lower your expectations when Shiller P/E’s are high without a good reason — and in my view, the critics have not provided a good reason this time around — I think you are making a mistake.”

While, Wade is correct that investors who got out of the market using Shiller’s P/E ratio would have missed the run in the markets from 2009 to present, those same individuals most likely sold at the bottom of the market in 2008 and only recently began to return as shown by net equity inflows below.

In other words, they missed the “run up” anyway. Investor psychology has more to do with long-term investment outcomes than just about anything else.

What valuations tell us, is that at current levels investors are strictly betting on there always being someone to pay more in the future for an asset than they paid today. 

Huckster Alert…

It is not surprising that due to the elevated level of P/E ratios since the turn of the century, which have been fostered by one financial bubble after the next due to Federal Reserve interventions, there has been a growing chorus of views suggesting that valuations are no longer as relevant. There is also the issue of the expanded use of forward operating earnings.

First, it is true that P/E’s have been higher over the last decade due to the aberration in prices versus earnings leading up to the 2000 peak. However, as shown in the chart below, the “reversion” process of that excessive overvaluation is still underway. It is likely the next mean reverting event will complete this process.

Cliff directly addressed the issue of the abuse of forward operating earnings.

“Some outright hucksters still use the trick of comparing current P/E’s based on ‘forecast’ ‘operating’ earnings with historical average P/E’s based on total trailing earnings. In addition, some critics say you can’t compare today to the past because accounting standards have changed, and the long-term past contains things like World Wars and Depressions. While I don’t buy it, this argument applies equally to the one-year P/E which many are still somehow willing to use. Also, it’s ironic that the chief argument of the critics, their big gun that I address exhaustively above [from the earlier post], is that the last 10 years are just too disastrous to be meaningful (recall they are actually mildly above average).”

Cliff is correct, of course, as it is important to remember that when discussing valuations, particularly regarding historic over/undervaluation, it is ALWAYS based on trailing REPORTED earnings. This is what is actually sitting on the bottom line of corporate income statements versus operating earnings, which is “what I would have earned if XYZ hadn’t happened.”

Beginning in the late 90’s, as the Wall Street casino opened its doors to the mass retail public, use of forward operating earning estimates to justify extremely overvalued markets came into vogue. However, the problem with forward operating earning estimates is they are historically wrong by an average of 33%. To wit:

“The biggest single problem with Wall Street, both today and in the past, is the consistent disregard of the possibilities for unexpected, random events. In a 2010 study, by the McKinsey Group, they found that analysts have been persistently overly optimistic for 25 years. During the 25-year time frame, Wall Street analysts pegged earnings growth at 10-12% a year when in reality earnings grew at 6% which, as we have discussed in the past, is the growth rate of the economy.”

Ed Yardeni published the two following charts which shows analysts are always overly optimistic in their estimates.

“This is why using forward earnings estimates as a valuation metric is so incredibly flawed – as the estimates are always overly optimistic roughly 33% on average. Furthermore, the reason that earnings only grew at 6% over the last 25 years is because the companies that make up the stock market are a reflection of real economic growth. Stocks cannot outgrow the economy in the long term…remember that.

 

The McKenzie study noted that on average ‘analysts’ forecasts have been almost 100% too high’ and this leads investors into making much more aggressive bets in the financial markets.”

The consistent error rate in forward earnings projections makes using such data dangerous when making long-term investments. This is why trailing reported earnings is the only “honest” way to approach valuing financial markets. Importantly, long-term investors should be abundantly aware of what the future expected returns will be when buying into overvalued markets. Bill Hester recently wrote a very good note in this regard in response to critics of Shiller’s CAPE ratio and future annualized returns:

We feel no particular obligation defend the CAPE ratio. It has a strong long-term relationship to subsequent 10-year market returns. And it’s only one of numerous valuation indicators that we use in our work – many which are considerably more reliable. All of these valuation indicators – particularly when record-high profit margins are accounted for – are sending the same message: The market is steeply overvalued, leaving investors with the prospect of low, single-digit long-term expected returns.

As clearly stated throughout this missive, fundamental valuation metrics are not, and were never meant to be, market timing indicators. This was a point made by Dr. Robert Shiller himself in an interview with Henry Blodgett:

“John Campbell, who’s now a professor at Harvard, and I presented our findings first to the Federal Reserve Board in 1996, and we had a regression, showing how the P/E ratio predicts returns. And we had scatter diagrams, showing 10-year subsequent returns against the CAPE, what we call the cyclically adjusted price-earnings ratio. And that had a pretty good fit. So I think the bottom line that we were giving – and maybe we didn’t stress or emphasize it enough – was that it’s continual. It’s not a timing mechanism, it doesn’t tell you – and I had the same mistake in my mind, to some extent — wait until it goes all the way down to a P/E of 7, or something.”

Currently, there is clear evidence that future expectations should be significantly lower than the long-term historical averages.

Do current valuation levels suggest you should be all in cash? No.

However, it does suggest that a more cautious stance to equity allocations and increased risk management will likely offset much of the next “reversion” when it occurs.

My job is to protect investment capital from major market reversions and meet investment returns anchored to retirement planning projections. Not paying attention to rising investment risks, or adjusting for lower expected future returns, are detrimental to both of those objectives.

Next week, I will introduce a modified version of the Shiller CAPE ratio which is more constructive for shorter-term outlooks.

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Trump Uses ‘POTUS’ Account To Tweet FBI Director “Refuses To Deny” Briefing Obama On Flynn

In a very unusual move, President Trump took time away from his personal Twitter account to tell the free world – via @POTUS – that “FBI Director Comey refuses to deny he briefed President Obama on calls made by Michael Flynn to Russia.”

On the bright side, at least there were no typos.

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France Suffers Week Of Terror As Poll Shows Majority Of French No Longer Feel Secure

Via Disobedient Media

France has been rocked by a series of terror attacks occurring just days apart as a new poll shows that increasing numbers of French citizens no longer feel safe anywhere in their own country. The attacks come after France’s Foreign Minister Jean-Marc Ayrault claimed there was “no connection” between Islam and terrorism while on a state visit to Indonesia.

On March 16th, 2017 an envelope bomb sent to the offices of the International Monetary Fund (IMF) in Paris exploded after it was opened, injuring an IMF staff member. Authorities were said to be investigating the incident for any connection to an explosive package that had been sent to the German Finance Ministry the day before. The same day, a 17 year old armed with a rifle, two pistols and hand grenades injured three in an attack at Tocqueville high school in Grasse, France. The best friend of the shooter was arrested in the aftermath of the incident. The UK’s Foreign Office subsequently issued a high terror warning to British nationals in France “due to ongoing threats to France by Islamist terrorist groups, and recent French military intervention against Daesh.” The French government also extended the country’s state of emergency until July 15, 2017, the fifth such extension since the Paris terror attacks in November 2015.

On March 17th, 2017, French news source Le Figaro a man slit the throats of a father and son in Paris before sitting and quietly waiting for authorities to arrive. Both Le Figaro and Le Parisien cited witness and police sources who stated that the attacker shouted the Takbir (“Allahu Akbar or Arabic phrase meaning “God is great”) during the incident, though police officials called for caution in “speculating over the motive” for the double murder.  The next day, a man was shot by police at Orly airport in Paris after trying to seize an officer’s pistol. The individual was known to security forces, had shot at a police officer in Northern Paris earlier that day and was a radicalized Muslim on a security watchlist. The BBC’s report on the incident neglected to mention the attacker’s name, nationality and history of radicalization in an apparent attempt to conceal his ties to Islamic extremism. In the midst of the week’s terror, a March 2017 poll conducted by IFOP-Fiducial found that 6 out of 10 French citizens no longer feel safe anywhere in the country, and 69% felt that French police and gendarmerie were understaffed. 55% said they would like to see France exit the EU’s open border Schengen zone.

The spree of attacks are followed by reports from French journalists on March 19th that riots which plagued the country for several weeks have broken out again, with videos showing protestors hurling molotov cocktails and flares at police forces.

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Goldman Slashes Buyback Forecast By $100 Billion Due To Delay In Trump Tax Reform

Two months ago, in early January, when forecasting the source of funds for US stock purchases, Goldman calculated that of the $1 trillion in total demand for calendar 2017, the vast majority. or some $800 billion would come from corporate buybacks, with the balance, or $200 billion would be sourced from ETF demand. Fast forward to this weekend, when Goldman’s David Kostin has revised his buyback forecast, and now expects that corporation will repurchase $100 billion less of their own shares, reducing the total to $700 billion, because corporate tax reform is likely to be delayed. As we reported previously, Goldman had expected $150 billion of buybacks as a result of a one-time tax relief on foreign profit.

The reason for the forecast cut is that Goldman now expects that Trump’s tax reforms will be substantially delayed, and not take place until late 2017 or even early 2018, due to the delays facing Trump’s various other domestic agenda items, first and foremost the repeal of Obamacare.

Nonetheless, the new forecast still represents a 20% increase from 2016, when a total of $584 billion in corporate buybacks took place.

Here is the summary from Kostin:

In 2016, corporations and ETFs were the key drivers of positive US equity demand, purchasing almost $800 billion of equities. In contrast, mutual funds, pension funds, households, and foreign investors were net sellers. In 2017, we expect history will repeat itself. Although we lower our corporate demand forecast by $100 billion, to $700 billion, net buybacks will grow by 20% in 2017. ETF equity purchases will equal $200 billion this year while mutual funds, households, and pensions will remain net sellers…. We lower our 2017 forecast of corporate equity demand by $100 billion, to $700 billion, given our Washington, D.C. economist’s expectation for a delay in corporate tax reform. However, corporations will remain the primary source of US equity demand this year.

Finally, Kostin writes that since such pure yield strategies as buybacks are at risk during periods of rising interest rates, that Investors should favor dividend growth stocks.

Here are select excerpts from the Goldman note:

Corporations and ETFs were the key drivers of US equity demand last year. Net equity purchases by corporations and ETFs equaled $584 billion and $188 billion, respectively, which offset net selling by mutual funds, households, and pension funds. Foreign investors also fled US equities during 2016, including $60 billion of net selling post-election amidst concerns of potential protectionist policies proposed by the Trump Administration. 

 

 

In 2017, we expect history will repeat itself. Corporations and ETFs will continue to drive equity demand while mutual funds, households, and pension funds will remain net sellers of equities.

 

We lower our 2017 forecast of corporate equity demand by $100 billion, to $700 billion, given our Washington, D.C. economist’s expectation for a delay in corporate tax reform. However, corporations will remain the primary source of US equity demand this year. Our prior forecast assumed a one-time tax on untaxed foreign profits would occur in 2H 2017, resulting in an additional $150 billion of buybacks as firms repatriate overseas cash. However, we now expect corporate tax reform will not occur until in late 2017 or early 2018. Given this delay, we now estimate firms will only repatriate $60 to $70 billion of overseas cash this year and spend $50 billion (around 75%) on share buybacks.

 

ETF equity purchases will equal $200 billion given continued investor preference for passive vs. active management. Total inflows into equity ETFs equal $66 billion YTD vs. $23 billion of outflows from equity mutual funds. ETF ownership of the corporate equity market is at an all-time high (5%) while mutual fund ownership (24%) is at its lowest level since 1Q 2004.

 

We expect mutual funds will remain net sellers of equities ($50 billion) given investor outflows and low liquidity. Mutual fund liquid assets as share of total assets are near historical lows (3% as of Jan 2017). However, higher dispersion and improved fund returns YTD suggest that mutual fund demand in 2017 (-$50 billion) will be higher than in 2016 (-$117 billion). 

 

Pension funds will sell $175 billion of equities during 2017 alongside rising interest rates. We expect the 10-year US Treasury yield will equal 3% by year-end. Households will be net sellers of equities due to the surge in share repurchases. Given our forecast of $700 billion of net buybacks, we expect that Households will be the key sellers to companies ($300 billion).

Finally, going to the heart of the active vs passive investing debate, Goldman points out that in 2016, the ETF share of the equity market at an all-time high; meanwhile allocation to mutual funds continues to decline, and the end result may be tht mutual funds sell far more than the $50 billion that Goldman forecasts, mostly driven by the ongoing surge in redemptions.

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5-Year Treasury Yield Tumbles Below 2.00% As Short-Squeeze Picks Up

Five-year Treasury yields have tumbled back below 2.00% to the lowest levels in almost three-weeks, extending the drop amid the weakest economic growth period for a rate-hike since 1980.

 

The yield curve has flattened dramatically in the week since The Fed hiked…

 

With net positioning near record high shorts, and everyone and their pet rabbit sure that a breakout above 2.15% was 'inevitable'…

 

And while some of the Treasury short has covered, the massive extension of Eurodollar shorts more than offset it – leaving 'shorts' across the entire curve at record highs…

 

We wonder what happens next.

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Used Car Prices Crash Most Since 2008

Authored by Mike Shedlock via MishTalk.com,

According to NADA Used Car Guide, wholesale prices on used vehicles are getting crushed. Let’s take a look at the details.

Used Car Prices Since 1995

Used Car Prices by Type of Vehicle

Used Market Update

In a reversal of what typically occurs in February, wholesale prices of used vehicles up to eight years old fell substantially last month, dropping 1.6% compared to January. The drop was counter to the 1% increase expected for the month and marked just the second time in the past 20 years prices fell in February (last years’ scant 0.2% being the other instance).

 

NADA Used Car Guide’s seasonally adjusted used vehicle price index fell for the eighth straight month, declining 3.8% from January to 110.1. The drop was by far the worst recorded for any month since November 2008 as the result of a recession-related 5.6% tumble. February’s index figure was also 8% below February 2016’s 119.4 result and marked the index’s lowest level since September 2010.

 

Incentives Jump by 18.1%

Automakers grew incentive spending once again in February, making it the 23rd month in a row where spending was increased. On average, spending reached $3,594 per unit versus $3,043 per unit in February 2016 according to Autodata.

 

Among the U.S. Big Three, GM raised incentives by 27.4% in February to an average of $5,125 per unit. Spending at Ford Motor Company rose by 20.9% to $4,012 per unit, while FCA increased incentives by 10.6% to $4,365.

 

As for Import automakers, Toyota Motor Sales raised incentives by 7.9% in February, reaching an average of $2,267 per unit. American Honda grew incentives by 26.6% to $1,886, while Nissan North America increased spending by 20.1% to $4,080 for the month.

 

Inventory Falls to 74 Days

Compared to January, days’ supply fell by 11 days in February, landing at 74 days for the period. Looking back, February 2016 saw a supply of only 69 days according to Wards Auto.

 

GM’s supply reached 91 days over the month, due largely to Buick’s industry high 167-day inventory. Ford Motor Company’s supply fell to 78 days, while FCA’s inventory dropped to 83 days.

 

Toyota Motor Sales’ supply decreased to a lean 67 days, matching Nissan’s figure for 67 days for the month. Meanwhile, inventory for Honda fell to 74 days. Subaru’s 38 days of supply remained lowest in the industry.

 

As for luxury automakers, BMW’s inventory fell to 46 days, while Daimler inventory remained unchanged versus January at 44 days’ supply. Cadillac’s inventory of 107 days was the highest in the luxury sector, while Tesla’s two days was the lowest.

Desutche Bank is gravely concerned…

We’ve grown increasingly concerned about U.S. Used Vehicle Pricing down 7.7% yoy during February, per NADA. A decline in used prices has been widely anticipated given a significant increase in used vehicle supply (off-lease vehicles). But the magnitude of the recent drop was nonetheless surprising (February’s drop was largest recorded for any month since Nov. 2008). NADA cited a number of factors contributing to the drop, including an increase in late model auction supply from rental fleets, and delayed tax refunds. Used prices have a significant impact on New Vehicle demand/pricing through their effect on affordability (most new car purchases involve a trade-in).

 

 

New/Used Vehicle Pricing & Demand Relationship. Some consumers shift from New to Used when Used Vehicle prices become relatively more attractive, negatively impacting New Vehicle demand. Used price deterioration also has an impact on credit, as lenders watch loan loss severity (and frequency), and tighten when this stat. weakens (potentially creating a negative feedback loop). At a more macro level, used vehicle price weakness is also seen as an indicator of aggregate vehicle supply/demand imbalance in the economy–caused by new vehicles entering the parc significantly faster than the rate of scrappage and net new licensed driver growth. This situation should ultimately self-correct as new car sales come under pressure. That said, the biggest fear for investors is that Auto OEMs become incrementally more price aggressive to support New Vehicle sales. Historically, every 1% decline in Used Vehicle prices has corresponded with a 0.2% decline in New Vehicle prices.

Fundamentally Speaking

NADA partially blames late tax refunds for some of the declines in March.

While it’s true the IRS slowed claims for the Earned Income Tax Credit (EITC) and the Additional Child Tax Credit (ACTC) to combat fraud, late refunds in 2017 cannot possibly explain an eight-month trend.

Yet, based on tax refunds, NADA expects a rebound in used car prices in March.

With massive incentives on new vehicles, I say, let’s see. Regardless, it’s pretty clear that car sales are slowing, and it takes bigger and bigger incentives to push them out the door.

Recall that on March 7, GDPNow 1st Quarter Forecast Plunges to 1.3% Following Vehicle Sales and Factory Orders Reports.

Also recall that the FRBNY Nowcast did not take auto sales into consideration.

On March 15, I reported GDPNow Forecast Dips to 0.9%: Divergence with Nowcast Hits 2.3 Percentage Points – Why?

Is this all related to slow tax refunds? We will soon find out.

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Comey Confirms FBI Investigating Ties Between Russia, Trump Associates

ComeyYes, associates of President Donald Trump are the focus of an FBI investigation over potential connections to the Russian government and Russia’s attempts to meddle with the 2016 presidential election, FBI Director James Comey confirmed in a House committee meeting this morning.

Comey would not discuss any details of the ongoing investigation or suggest that they believed that any crimes had been committed as yet. That’s what the investigation was for. The public announcement confirms what had been leaked out from several sources already. Comey did say there would be an “assessment of whether any crimes were committed.”

Furthermore, pretty much everybody participating on both sides of this House Intelligence Committee hearing was on the same side in concluding that Trump’s tweets that he had been wiretapped by President Barack Obama were not supported by evidence. This doesn’t necessarily mean that other types of surveillance might have happened. But parties dismissed the idea that wiretaps were involved, and Mike Rogers, director of the National Security Agency, explained that Obama would not have had the authority to simply order Trump to be wiretapped on his own.

Other than those two major news hooks, much of the rest of the questioning from the House committee, at least in the earliest stages, ping-ponged back and forth between the two parties’ attempts to spin this entire scandal their way. For Democrats, this meant a heavy focus on Russia’s potential meddling in the election. Though there has still been no evidence that Russian hacking altered the results of the election in any way, committee ranking member Rep. Adam Schiff (D-California) spent a good 15 minutes detailing the entire background of the targeting of the Democratic National Committee and Hillary Clinton’s campaign pre-election for hacking and timed releases of private email discussions.

For Republicans, much of the focus was, first of all, pointing out that there was no evidence the election results themselves were altered by hackers, and then attacking the leaks coming out of the intelligence community, particularly wanting to track down and punish whoever it was who leaked to the press that Michael Flynn, Trump’s short-lived national security advisor, had been talking to a Russian diplomat and—more importantly—had apparently lied to now-Vice President Mike Pence about it. The emphasis on the crimes of the leaks themselves may well have reached its strangest place when Rep. Trey Gowdy (R-South Carolina) made a show out of refusing to say Flynn’s name when asking questions after making a big deal about how these intel leaks have the potential to violate the privacy of Americans.

There’s a secondary goal here by pro-surveillance conservatives that helps make the line of questioning make a little more sense. It’s not necessarily about protecting Trump and Trump’s associates. It’s about protecting the intelligence community’s surveillance authorities. Rep. Tom Rooney (R-Florida), and other Republicans raised concerns that these leaks could compromise efforts to renew Section 702, an amendment to the Foreign Intelligence Surveillance Act (FISA) that details some authorities and restrictions on overseas or international surveillance that also ends up scooping up conversations or data from Americans.

Section 702 is going to sunset this year unless Congress takes action on it. Privacy and civil liberties groups have called for reforms to Section 702 to provide greater protections for Americans from having their information collected, stored, and used in domestic crime investigations without warrants. Surveillance advocates and the Trump administration itself do not want any reforms to 702 and want it renewed as it is. So the perception among Republicans on the panel was that the leaks revealing Flynn’s name jeopardize the renewal of 702 because it shows that the American people can’t trust that their privacy actually will be protected by the intelligence community.

It’s yet another example of how people in position of power don’t grasp the consequences of the abuse of authority until it’s against them or their friends. Even so, there was little evidence the Republicans were concerned at all that the collection and use of the private communication was itself a problem but rather that the information was leaked.

And ultimately the partisan split in the discussions here presents us with a false choice. There’s no reason why Americans shouldn’t be concerned by a foreign power’s breach of a political party’s communications in an attempt to influence the election and at the same time worry about the dangers and long-term consequences of the intelligence community using agenda-driven links to attempt to damage the leaders of the executive branch (a.k.a. their bosses).

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Tomi Lahren, Pro-Choice Conservative, Not ‘Incoherent’ on Abortion

Conservative starlet Tomi Lahren is facing a heap of backlash from her usual supporters after an appearance on ABC’s The View in which she defended the decriminalized status of abortion. Lahren, who hosts a popular show (Tomi) for Glenn Beck network The Blaze and is a frequent guest on Fox News programs, said that as someone who “loves the Constitution” and believes in limited government she can’t support the government “decid[ing] what women do with their bodies.”

“I’m pro choice,” Lahren admitted, calling it hypocritical to profess support for small government yet want to ban abortion. “I’m for limited government, so stay out of my guns, and you can stay out of my body as well.”

Contra Lahren’s critics, this is a perfectly coherent position, and one that was once perfectly respectable within the mainstream conservative movement. There’s only tension between believing abortion should be legal—which is all being “pro-choice” means—and the Constitution’s prescription of “life, liberty, and property” protection for all if you believe that personhood begins at conception. But one needn’t believe this, nor even be a Christian at all, in order to champion conservative political philosophy.

And even if one does believe that abortion is an immoral practice, it doesn’t necessarily follow that one must wish it banned completely. There are plenty of pro-life Americans who believe a blanket ban on abortion is not the best way to end the practice, given how black markets work. They instead strive to end abortion through changing hearts and minds, advocating better pregnancy-prevention methods, working to expand adoption options, and things like that. Again, this might seem horrific to people who believe that aborting an eight-week old fetus is the exact same as murdering a 2- or 20- or 80-year-old, but that’s a matter of moral or religious perspective. Many others who believe abortion is wrong are simultaneously able to hold that it’s not the same degree of wrong as ending a life outside the womb, or that the competing rights of pregnant women make abortion morally justifiable in some circumstances.

These are all positions that can convey coherent internal logic and political/moral belief systems. You may think folks like Lahren—who says she is personally against abortion, even though simultaneously pro-choice—are wrong, and that abortion is always the gravest of transgressions or never so, but it’s erroneous and unfair to brush aside their beliefs as simple stupidity, hypocrisy, opportunism, or cowardice. It’s exactly this kind of reflexive dismissal of differing beliefs and moral gray areas that keeps us locked in the stupidest kind of culture war over abortion, one that manifests in it being the most important litmus test for acceptance into political movements on the right and left and results in a host of high-profile, symbolic battles that all lead back to the same status quo.

Anyway, a lot of conservatives have been calling for Lahren’s head since her View appearance, insisting it’s an embarrassment and an outrage that such a pro-choice harpy could be a public face of Republicanism. As with Milo Yiannopoulos—who said all sorts of horrible things about women, Muslims, transgender people, etc., but was only ousted from polite conservatism after joking about pedophilic priests—it’s telling (if predictable) that tepidly pro-choice views are the dealbreaker for the right with Lahren, while things like calling Black Lives Matter activists “the new KKK,” referring to the Middle East as a “sandbox” that needs to be bombed, and defending the shooting of unarmed black men by cops never really rustled Republican jimmies.

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Does Neil Gorsuch Side With Clarence Thomas or Antonin Scalia on the 14th Amendment, The Slaughter-House Cases, and the Privileges or Immunities Clause?

Supreme Court nominee Neil Gorsuch has something in common with both Justice Clarence Thomas and with the late Justice Antonin Scalia. All three jurists are known as proponents of originalism, which is the idea that the Constitution should be interpreted according to its original meaning at the time it was adopted.

Yet despite their shared affinity for originalism, Thomas and Scalia disagreed on some fundamental questions of constitutional law. Most notably, Thomas and Scalia disagreed about whether the Supreme Court should revive and enforce the original meaning of the Privileges or Immunities Clause of the 14th Amendment. I’d like to know where Neil Gorsuch stands on this crucial divide.

Here’s the deal. According to the 14th Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” What are the privileges or immunities of U.S. citizens? According to Republican Congressman John Bingham of Ohio, the author of that section of the 14th Amendment, “the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States” include both those enumerated rights that are specifically spelled out somewhere in the Constitution—such as in the Bill of Rights—as well as other fundamental rights that are not enumerated in the document. Among the fundamental unenumerated rights that are secured against state abridgment, Bingham told the House of Representatives, was the “constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

The 14th Amendment was ratified in 1868. The Supreme Court first ruled on its meaning five years later in a dispute known as The Slaughter-House Cases. At issue was the granting of an exclusive and highly lucrative slaughterhouse monopoly to a private corporation by the Louisiana legislature. According to a number of New Orleans butchers, the monopoly law was an act of pure special interest cronyism that violated their fundamental rights to economic liberty under the 14th Amendment.

The Supreme Court disagreed, ruling 5-4 in favor of the state and its corporate beneficiaries. According to the majority opinion of Justice Samuel Miller, to view the Privileges or Immunities Clause as a guarantee of individual rights against any sort of state law or regulation would “fetter and degrade the State governments” and transform the Supreme Court into “a perpetual censor upon all legislation of the States.” Miller’s opinion effectively gutted the Privileges or Immunities Clause.

The principal Slaughter-House dissent was filed by Justice Stephen Field, who argued that the majority had just trashed the original meaning of the 14th Amendment. “It is to me a matter of profound regret that [the monopoly’s] validity is recognized by this court,” Field wrote, “for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.” In Field’s view, “the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the states which adopted it.”

From the standpoint of constitutional originalism, Field had the winning argument. But he failed to carry the day at SCOTUS. Slaughter-House remains what lawyers call “good law” to this day.

Which brings us back to Clarence Thomas and Antonin Scalia.


In 2010 the Supreme Court finally had the opportunity to revisit The Slaughter-House Cases. At issue in the case of McDonald v. City of Chicago was whether the Second Amendment right to keep and bear arms applies against state and local governments via the 14th Amendment, and if it does apply, is that because the right to keep and bear arms is a privilege or immunity of U.S. citizenship, or because it is one of the liberties protected by the Due Process Clause of the 14th Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

During the March 2010 oral arguments in that case, Justice Scalia openly mocked the idea of reviving the original meaning of the Privileges or Immunities Clause. “Why are you asking us to overrule 150, 140 years of prior law?” Scalia asked the libertarian lawyer Alan Gura, who was representing Otis McDonald in his gun rights fight. “Why do you undertake that burden,” Scalia went on, “instead of just arguing substantive due process, which as much as I think it’s wrong, I have—even I have acquiesced in it?”

It was a jaw-dropping moment. For decades Scalia had attacked the idea of using the Due Process Clause to protect substantive individual rights, denouncing it as a “judicial usurpation” and as an excuse “to render democratically adopted texts mere springboards for judicial lawmaking.” Yet here was Scalia, a self-professed originalist, failing to practice what he preached in a major case dealing with the original meaning of the 14th Amendment.

Clarence Thomas kept quiet that day, as he usually does during oral arguments. But he spoke up loud and clear in his written opinion. Whereas Justice Scalia, Justice Kennedy, and Chief Justice Roberts joined the majority opinion of Justice Alito, which applied the Second Amendment against the states via substantive due process, Justice Thomas filed a lone concurrence that argued for applying the Second Amendment against the states via the Privileges or Immunities Clause and thereby restore the long lost original meaning of that provision. Thomas also strongly implied that Slaughter-House should be overruled. “The mere fact that the [Privileges or Immunities] Clause does not expressly list the rights it protects does not render it incapable of principled judicial application,” Thomas wrote.

In short, Justice Thomas stood up for the original meaning of a core constitutional provision while Justice Scalia “acquiesced” to an approach that Scalia himself described as un-originalist and “wrong.”

Where does Neil Gorsuch stand on the matter? Does he side with Justice Thomas and favor the judicial enforcement of the Privileges or Immunities Clause, or does he side with Justice Scalia and support maintaining the substantive due process status quo? The Senate Judiciary Committee should ask him about these fundamental constitutional issues during this week’s confirmation hearings.

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