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Texas Opens the Midterm Primary Season

Texas held the first primaries of the 2018 midterm season yesterday, and you’ve probably read about a “surge” of Democratic voters. One especially potent indication of voter enthusiasm is that the number of early voters beat the previous record by 50 percent. Does this mean that Democrats can finally realize their recurring dream of “turning Texas blue”?

Not a chance. At least not this year. To see why, look at the state-wide races.

In addition to district-specific primaries for U.S House seats, Texas senate and house seats, and various judicial and other positions, Texans voted yesterday for a whole series of state-wide offices – U.S. senator, governor, lieutenant governor and various commissioners and judges. And way more Republicans voted than Democrats. Furthermore, the ratio of Republican to Democratic primary votes was pretty consistent across the range of state-wide primaries.

For instance, in the gubernatorial primaries, 1,537,868 Republicans voted, compared to 1,017,150 Democrats – roughly 50 percent more Republicans than Democrats. In the U.S. Senate primaries, 1,541,264 Republicans voted compared to 1,036,942 Democrats. The land commissioner primaries turned out 1,474,294 Republicans and 943,145 Democrats. The railroad commissioner primaries showed 1,368,077 Republican votes to 917,549 Democratic votes.

In other words, the only way the state-wide primary numbers are encouraging for Democrats is if Republican voters who opposed the primary winners vote overwhelmingly for Democrats in the general election. And even in that nightmare scenario, Republicans would do well. If incumbent Republican Governor Greg Abbott keeps only his 1,390,220 votes in the general election, and the Democratic candidate wins all other primary voters, whether Democratic or Republican, Abbott still wins re-election by almost 20 percent of the vote. Even Ted Cruz would win re-election in that scenario, although only by four percent.

That Republican “nightmare scenario” assumes constant turn-out from yesterday’s primaries to November’s general elections. But general election turnout is going to be higher, because general election turnout is always higher than primary turnout. So if yesterday’s primary turnout reflected an unusual surge of Democratic enthusiasm, then turnout for the Democratic primary may have been closer to the Democratic ceiling than turnout for the Republican primary voting turnout was to the Republican ceiling.

In any event, the state-wide races are not where Democrats should be looking for gains in Texas; it’s among the district-specific races that real gains can be found. For instance, in Dallas County alone, seven Republican state representatives hold seats in districts won by Hillary Clinton in the 2016 presidential election. Clinton won three Republican-held U.S. House districts in the state. These districts are Democrats’ real targets of opportunity in November.

With vote-counting almost complete in the 7th, 23rd and 32nd Congressional districts, Democratic primary voters in those races collectively outnumbered Republicans by 117,043 to 110,300. These are not blue districts, by any means – they represented in Congress by Republicans, and Mitt Romney won all three of them in 2012. So Democratic victories are not assured. But if the midterm Democratic wave is real, these districts will be competitive, offering real hope to Texas Democrats in 2018.


Undropped Shoes

An indictment typically comes in two parts. The first part is a factual narrative; the second part is a list of criminal charges against the defendant. The main purpose of the factual narrative is to state the facts that the prosecution must prove to convict the defendant on the listed charges.

So it’s a matter of interest when the first part of an indictment includes facts that are not necessary to the actual criminal charges. For instance, when a federal grand jury indicted Paul Manafort and Richard Gates last October, the indictment’s narrative included allegations that the defendants had evaded federal income taxes by disguising their income. Specifically, Manafort and Gates made “tens of millions of dollars” from their work for pro-Russian Ukrainians; they stashed the money in offshore bank accounts without declaring it as income; and they used the offshore accounts to buy stuff in the U.S.

But the indictment did not include any criminal charges of tax evasion. Some commentators picked up on this at the time, but as far as I know investigative reporters were unable to solve the mystery.

Until now.

Yesterday, four months after the initial indictment, another federal grand jury issued a new indictment against Manafort and Gates. This one includes lots of tax evasion charges – five against Manafort and eleven against Gates. Manafort and Gates are both charged with understating their income on their federal tax returns for each year from 2010 to 2014. Gates faces an additional charge of understating his income on an amended tax return he filed one year. And Gates is charged with assisting Manafort in falsifying five years of tax returns.

Tax fraud was not the only subject that was covered in the original indictment’s narrative but not in its charges. I noted at the time that indictment narrative included four paragraphs about bank fraud, but no criminal charges of bank fraud. Once again, the new indictment solves the mystery.

The new indictment includes nine new counts of bank fraud committed by Manafort and Gates against three different unnamed lendors. The gist of it is what was stated in the original indictment’s narrative: Manafort and Gates made false representations to American banks to obtain loans to Manafort. For instance, to get a bigger mortgage loan from one bank, Manafort and Gates falsely represented to the bank that the property to be mortgaged was used as a second residence, when in fact it was used as a rental property.

Even with all the new charges in the second indictment, there are still a lot of unanswered questions – the “undropped shoes” of my headline.

For starters, both the original and the new indictments include an uncharged allegation of bank fraud. The first instance of bank fraud alleged in both indictments’ narratives relates to a mortgage Manafort obtained on a Brooklyn property. The allegation is that Manafort was able to get a bigger mortgage loan on that property by falsely representing that he would spend part of the loan on construction that would increase the value of the property. This is the only instance of the six instances that included in the indictment narrative that is not included in the indictment charges.

Both indictments allege that Manafort and Gates used foreign bank accounts to hold the “tens of millions of dollars” they made from their representation of pro-Russian Ukrainian interests. Both indictments specify that “more than $75,000,000 flowed through the offshore accounts.” The original indictment accounted for only about $21 million of that $75 million – $18 million that Manafort used to buy real estate, goods and services in the United States, and $3 million that Gates used for purposes not specified in the original indictment.

The new indictment accounts for about $30 million of the $75 million. The new allegations are that Manafort, in addition to using $18 million in offshore funds to buy real estate, goods and services, drew about $10 million that he disguised as loans, to shield the funds from income taxes; and that Gates took his $3 million as transfers to five different bank accounts in the United Kingdom and the United States.

Still, that leaves more than half of the $75 million unaccounted for. If today’s New York Times report is correct that Gates is about to plead guilty and start cooperating with Mueller’s investigation, we may very shortly find out what happened to the rest of the $75 million.

Another undropped shoe is the identity of Manafort’s and Gates’s co-conspirators who are referred to but not named in the indictments. The bank fraud allegations in particular include a number of these references. In one instance, Gates altered a profit and loss statement for one of Manafort’s American companies to show more net income more than ten times greater than it actually was, for submission to a bank in connection with a mortgage loan application. The indictment alleges that Gates sent an e-mail about the falsification to “Manafort and another conspirator,” but the indictment gives no other information about the unnamed co-conspirator.

In connection with a different mortgage application, the indictment refers to “another conspirator” submitting application documents to the bank on Manafort’s behalf, and “a conspirator working at Lender B” – presumably two different co-conspirators in addition to Manafort and Gates.

There is every reason to believe that these co-conspirators are minor players in the overall drama, but of course we don’t know for sure, and in any event their identity remains an undropped shoe.

The money laundering allegations also refer to uncharged parties. The indictment alleges that the offshore bank accounts that Manafort and Gates used to hide their Ukrainian earnings were “opened by them and their accomplices.” The indictment gives no clues who the accomplices were, and it’s not even clear whether the “accomplices” (who were not called “conspirators,” for whatever that’s worth) were in on the criminal purposes behind the bank accounts. On the other hand, it’s possible that the “accomplices” were Russians doing Vladimir Putin’s bidding, and that the money laundering and tax fraud conspiracies were intended for more than just enhancement of Manafort’s and Gates’s personal wealth.

There are other, even bigger undropped shoes. One is why Manafort needed so much money beginning in 2015. The indictment observes that Manafort’s and Gates’s Ukrainian income “dwindled” after the Ukraine’s pro-Russian president was ousted by its pro-Western parliament in February 2014, and that seems plausible enough. The indictment alleges that Manafort drew on offshore funds for purchases as late as November 2014, and for fake loans as late as 2015. Maybe the offshore funds just ran out.

In any event, the indictment charges that, beginning in “late 2015,” Manafort began applying for mortgage loans on various properties he owned. He got a $5 million loan in “early 2016,” a $3.4 million loan in March 2016, a $1 million loan and a $5.5 million loan later in 2016, and $16 million in two separate loans in July 2016 and January 2017. That trajectory implies that Manafort’s financial needs grew substantially after his Ukrainian income “dwindled.” It also implies, of course, that Manafort and Gates continued to commit bank fraud while they were working on then-candidate Donald Trump’s presidential campaign, and continuing at least through the post-election transition, into January 2017.

A closely related undropped shoe is why Manafort was willing to work, first as Trump’s chief delegate wrangler, then as his campaign chairman and manager, for no pay. Manafort approached Trump about it at the end of February 2016, and he started work the next month. It’s at least odd that someone in need of money would volunteer for unpaid full-time work. It’s even odder since nobody expected Trump to win the nomination, much less the election, back in February 2016 – unless, that is, Manafort knew something no one else knew at the time.

It’s also still not clear why Trump agreed to hire Manafort, even for free. It’s true that Trump’s campaign was having trouble attracting quality experience, since one of the cornerstones of his campaign was the denigration of the entire Republican Party establishment. (This is the same reason that Trump had to resort to unknowns like George Papadopoulos as foreign policy advisors in March 2016.)

When Manafort left the Trump campaign in August 2016, it was supposedly because the Trump campaign had become uncomfortable with Manafort’s work for pro-Russian Ukrainians. But Manafort’s Ukrainian work was well known when Trump took him on – it was reported at the time in the New York Times. So the campaign’s claim after Manafort left that Manafort “apparently didn’t tell them what he was doing” seems disingenuous.

Even if there are plausible innocent explanations why Manafort might be eager to work for the Trump campaign, even for free, even while he desparately needed money, and why Trump might agree to hire Manafort, despite Manafort’s lack of significant American electoral experience in the previous 20 years. But there is at least one plausible explanation that isn’t so innocent: Russian interests had leverage over either or both men and they used that leverage to get Trump and Manafort to accept each other.

My final undropped shoe for today is this: why has Manafort been so resistant to cooperation with Mueller? Manafort is 68 years old; the charges against him are easily sufficient to keep him behind bars for life; and at least some of the charges seem to be pretty iron-clad.

Again, there are plausible innocent explanations. Maybe he, or his lawyers, don’t think Mueller’s charges will stick. Maybe they think he can get a better deal at some later point in the case.

There is, unfortunately, a more disconcerting possibility. Manafort is presumably aware that Vladimir Putin’s government is widely believed to be responsible for large numbers of assassinations, mostly inside Russia, but including at least two outside Russia, in the United Kingdom. American journalists have accused Russian interests of committing assassinations across Europe and the Middle East, and have raised concerns whether attacks against Putin critics in the United States were instigated by Putin.

Manafort is certainly aware by now, even if he wasn’t during the campaign, of Russian manipulation of the 2016 election. Manafort may be concerned that Putin, having won the prize of a Trump presidency, will not allow Manafort to give information that could unravel that presidency.

Fear of death outweighs fear of life in prison.


What’s That Sound?

There’s somethin’ happenin’ here
What it is ain’t exactly clear
There’s a man with a gun, over there
Tellin’ me I got to beware.

Stop, children, what’s that sound?
Everybody look – what’s goin’ down?

There’s battle lines bein’ drawn
Nobody’s right if everybody’s wrong
Young people speakin’ their minds
Gettin’ so much resistance from behind.

Stephen Stills, For What It’s Worth (1966)

With a zeal and purity of purpose that only youth can bring to a cause, students of the Marjory Stoneman Douglas High School are doing something unprecedented in the tragic history of school shootings. Surviving students – teenagers, most of them too young even to vote – are leading a national movement for reform of our gun laws. They have adopted “never again” for the name of their organization, intentionally or otherwise labeling our epidemic of school shootings a holocaust, a crime against humanity. They are hell-bent to be the survivors of the last mass shooting.

Some of the students are strikingly articulate, remarkably capable public speakers. Stephanie Ruhle, of MSNBC, interviewed a surviving senior, David Hogg, the morning after the shooting, and was – in her own words on the air – “blown away” by his eloquence and by the sophistication of his call for legislative action.

Hogg spoke plainly, like a real person, without the circumlocutions that politicians give us. He pointed out that we have become inured to truly shocking facts, like the fact that our school children engage in “active shooter drills” as routine as fire drills. He pointed out that the shooting he and his sister had survived was the 18th school shooting in this country just this year. He brought us back to being shocked by facts that we had stopped being shocked by.

Hogg was interviewed on CNN two days later. When Alisyn Camerota asked him what message he wanted to send Congress, he was ready. He turned to talk directly to the camera, as if he had done dozens of TV interviews before, and he demanded action in place of useless talk about “thoughts and prayers.” Then he preemptorily devastated any politician who failed to act: “We’re children. You guys, like, are the adults.”

Perhaps most widely noted of Hogg’s classmates is Emma Gonzalez, whose speech at a “Not One More” rally just three days after the massacre was an inspiration. Gonzalez spoke for 12 minutes, mostly reading from a sheaf of papers she called “my AP Gov notes.” Her grief was immediate and palpable, as she repeatedly had to wipe tears from her eyes so she could keep reading and keep speaking. Her anger was also palpable.

Gonzalez opened with a condemnation of our politicians’ inability to move from “thoughts and prayers” to action to protect children from mass murder. Parkland’s survivors had to be there instead of home grieving, she said, “because if all our government and President can do is send thoughts and prayers, then it’s time for victims to be the change that we need to see.”

Gonzalez contrasted countries where mass shootings are rare to the United States, where mass shootings are so common that there is a Web site that compiles lists of them. She insisted that, regardless of shooters’ mental health, the frequency of mass shootings is not solely a mental health issue, but is also a gun issue.

Gonzalez turned to the NRA, calculating that the NRA’s contributions to Donald Trump’s presidential campaign amounted to $5,800 for each American shooting victim during 2018 alone:

“Is that how much these people are worth to you, Trump? If you don’t do anything to prevent this from continuing to occur, that number of gunshot victims will go up and the number that they are worth will go down. And we will be worthless to you. To every politician who is taking donations from the NRA, shame on you.”

Gonzalez concluded with the most powerful passage in her speech. She accused “the people in government” of lying about gun violence. She said that it seems to fall to high school students, to children, to call out the lies. Then she laid out a series of those lies, each followed by the Never Again response:

“Politicians who sit in their gilded House and Senate seats funded by the NRA telling us nothing could have been done to prevent this, we call BS. They say tougher guns laws do not decrease gun violence. We call BS. They say a good guy with a gun stops a bad guy with a gun. We call BS. They say guns are just tools like knives and are as dangerous as cars. We call BS. They say no laws could have prevented the hundreds of senseless tragedies that have occurred. We call BS. That us kids don’t know what we’re talking about, that we’re too young to understand how the government works. We call BS.”

The children, the high school students who survived the Parkland massacre, understand something that adult gun control advocates have not understood. We have gotten lost in arguing the factual merits of the NRA’s ever more bizarre claims about the futility of gun control. I’ve personally fallen down that particular rabbit hole – for example, after Micah Johnson shot 14 armed, on-duty Dallas police officers, I argued that surely this incident should put to rest the NRA’s lie that “the only way to stop a bad guy with a gun is with a good guy with a gun.”

The Never Again students’ approach is better: instead of disproving each lie in what is an unending stream of lies, the students just “call BS.” We know they’re right. We know the lie is a lie. We know that legislators could decrease the frequency of mass shootings, and we know that legislators’ excuses for not legislating are lies. Huge majorities of Americans agree on some basic stuff like universal background checks for gun and ammunition buyers; barring gun purchases by violent criminals, convicted stalkers, suspected terrorists and the seriously mentally ill; and banning assault weapons and high-capacity magazines.

Today the students are in Tallahassee to meet with Florida state legislators and demand action instead of “thoughts and prayers.” On March 24, the students are going to march on Washington to demand action from federal legislators.

There is something happening here. Our children are leading us because the adults have failed. Our children have of necessity become proponents of their own protection, because the adults have failed. Our children are shaming us for our failure.

I say, let’s follow the kids. Let’s follow them to Washington, to our state capitals. Let’s attend their rallies. Let’s join their movement, but let’s not try to take control of it. So far, the teenagers are doing a better job of it than we ever did.


Information Warfare Against the United States of America

There is much of interest in today’s 37-page indictment of three Russian companies and 13 Russian individuals on conspiracy and other charges in connection with the Russian campaign of interference with our 2016 elections. Perhaps the most breathtaking section of the indictment is paragraph 10c, which gives the lead defendant’s own description of its 2016 election interference campaign as “information warfare against the United States of America.” We can only hope that Special Counsel Robert Mueller’s deeply detailed description of Russian “warfare” against us will prompt our own Congress to give a little more priority to fighting election interference and a little less priority to fighting Mueller’s investigation.

Most Americans who aren’t in denial about Russian election interference probably assume that the interference campaign was approved, if not orchestrated, by Russia’s President Vladimir Putin. Today’s indictment doesn’t explicitly say so, but it includes a hint.

The defendant charged with managing the interference campaign is a Russian company called Internet Research Agency LLC. Two other defendants, Russian companies named Concord Management and Consulting LLC and Concord Catering, allegedly “controlled funding, recommended personnel, and oversaw [Internet Research Agency’s] activities.” The indictment asserts, essentially in passing, that the two Concord companies hold “various Russian government contracts.”

The indictment does not say another word about those contracts, but the implication is that the Russian government used the Concord companies to fund the interference campaign by Internet Research Agency and its employees. The indictment alleges that Internet Research Agency was a sizable company – for instance, the indictment says that, by July 2016, Internet Research Agency employed 80 people just in its “translator project,” which was the corporate division focused on social media. In addition to the translator project, the indictment mentions two other corporate divisions: a data analysis group and an IT group.

In announcing the indictment, Deputy Attorney General Rod Rosenstein felt compelled, in extravagant deference to his boss’s delicate ego, to emphasize “repeatedly” that the indictment does not allege that Russian interference changed the outcome of the election. But the indictment does outline a sophisticated, multi-faceted effort to influence the election outcome.

The Russian interference campaign was long in the planning – Internet Research Agency was registered as a Russian corporation in 2013, and by April 2014 the social media campaign was underway.

Defendants posing as Americans operated social media groups designed to attract American audiences, and they used viewing metrics to monitor the success of their efforts. They tracked the number of American viewers and the level of viewers’ engagement, such as likes, comments, and re-posts. The indictment mentions one social media group that attracted more than 100,000 followers – and, remember, there were 80 Internet Research Agency employees charged with setting up these groups.

Defendants used these social media groups to address divisive American political issues like immigration, to post derogatory and not necessarily truthful information about presidential candidates other than Donald Trump and Bernie Sanders, and to support those two. Beginning in 2015, defendants bought social media advertising and organized political rallies in support of their favored candidates. Posing as Americans, defendants communicated with American political activists to coordinate their activities, the obvious intention being to amplify their effect.

Posters received technical guidance on things like the ideal ratios of text, graphics and videos to use in posts, and they received feedback on the content of their posts – for instance, one poster was admonished for having too few posts “dedicated to criticizing Hillary Clinton,” and was instructed “to intensify criticizing Hillary Clinton.”

During the general election campaign, defendants undertook an effort to discourage African-Americans and Muslim Americans from voting at all, or to vote for Green Party candidate Jill Stein.

So yes, it’s true that the indictment does not allege that Russian interference changed the outcome of the election. What the indictment does allege is a well planned, well funded, long-term campaign of social media posting and advertising, supplemented by campaign rallies successfully promoted on-line. Political campaigns pay for advertising and rallies because it is universally believed that advertising and rallies influence voting – politicians all refer to it as “getting our message out.” The likelihood that no votes were influenced by the Russian campaign is nil; it is certain that the Russian effort had some effect, and it is impossible to measure how big that effect was.

Another notable aspect of today’s indictment is that it alleges no “collusion” – no knowing cooperation by any American with Russian efforts to influence the election outcome. On the contrary, the indictment alleges sophisticated and complex efforts by the Russians to present themselves as Americans. Internet Research Agency deployed some of their computers and other hardware in the United States, and set up virtual private networks that would appear to be American. They used faked American identities, or, in some cases, they used stolen identities of real Americans – consequently the indictment includes six charges of “aggravated identity theft.”

The indictment explicitly and repeatedly says that Americans who communicated with the defendants thought they were communicating with Americans, not Russians. In other words, the defendants’ efforts to conceal their Russian identities were successful. Of particular interest, the indictment alleges that members of the Trump campaign were among the Americans who unknowingly communicated with the defendants or others working with the defendants. The indictment doesn’t specify which Trump campaign members and it doesn’t detail the communications. Whatever communications the indictment refers to, it doesn’t refer to the Trump Tower meeting that Donald Trump Jr., Jared Kushner, and Paul Manafort took with a group of Russians including Natalia Veselnitskaya. Trump Jr. was told right from the start that he would be meeting with a “Russian government attorney.”

Partisans hoping this indictment would allege Trump campaign collusion with Russian interference will be disappointed. There isn’t a hint of collusion to be found, let alone an explicit accusation. This might mean two things. It might mean that Mueller’s investigation has found no collusion, or at least as yet has not produced sufficient proof of collusion to support criminal charges. It also might mean that this indictment is not the last indictment to come on the question of Russian interference.

Curiously, the indictment refers three separate times to a conspiracy among “persons known and unknown” to the grand jury. The unindicted conspirators are apparently Russian, or at least are not American, because the indictment alleges that “defendants and their co-conspirators” traveled to the United States to gather intelligence for their operation, and that “defendants and their co-conspirators” posed as Americans to communicate with American activists.

The indictment does not say why the known co-conspirators were not indicted. One reason is that they may be cooperating with Mueller’s investigation. It seems likely from the indictment, with its details about the corporate organization and personnel of Internet Research Agency, and its budget and finances, that Mueller had the benefit of inside assistance of some kind – although it’s possible that his investigators hacked into Russian computer systems. That would be poetic justice of a kind, I suppose.

The only other reason I can see for not indicting known conspirators would be that a further indictment is coming. If further indictments are in the works on the subject of Russian interference (as opposed, for example, to indictments for obstruction of justice), then it is possible that collusion might yet be charged.

Mueller’s history of integrity is top notch, so I don’t consider it plausible that he timed the indictment with political goals in mind. Still, the timing is especially apt. The scope and detail of the Russian election interference that he alleges are chilling, and, combined with the unanimous Congressional testimony this week by American intelligence chiefs that Russian interference with our 2018 midterms is already underway, the indictment commands serious attention and demands serious action. The indictment says that the Russians who ran the campaign of election interference regarded themselves to be at war with the United States of America, and declared warfare against us cannot be dismissed as an excuse by Democrats for losing an election.

Trump has worked hard to divert attention from the original purpose of the Mueller investigation, which was to determine the full extent of Russian election interference. Trump wants to re-cast the investigation as one into “collusion,” which enables him to attribute partisan motives to investigators. Today’s indictment is a forceful reminder that, whether there was collusion or not, the Russians hacked an American presidential election and we have done precious little about it.

Today’s indictment also carries an unstated charge. A government official who now persists in opposing the Mueller investigation risks the very harshest judgment that history can render, which is aiding and abetting a declared enemy of the United States of America.

The Untamed Demagogue

Conservative New York Times columnist Ross Douthat concedes that Donald Trump ran for president on a platform of “wildly irresponsible and authoritarian rhetoric.” If Trump implemented his campaign promises, “disasters would ensue.”

But Douthat argues that Republicans in Congress and in Trump’s cabinet have effectively “contained” Donald Trump’s authoritarian or destabilizing promises. As evidence, Douthat offers a “short list” of Trump’s campaign promises that have not been implemented: reinstating torture, shaking up NATO, abandoning American allies to Russian influence, pulling out of NAFTA, loosening state libel laws, launching a trade war with China, pulling out of the Iranian nuclear deal, installing cronies and relatives in high judicial posts, banning Muslim entry to the United States, and deporting millions of illegal immigrants.

On its own terms, I have three objections to Douthat’s argument. First, Douthat glosses over the partial implementation of several of the promises on his list. It is true that none of the campaign promises on Douthat’s “short list” has been fully implemented, but many of them are in progress.

Second, at least some of Trump’s campaign promises have fallen short not due to containment by Republicans in Congress or the cabinet, but due to judicial intervention. Most prominently, Trump’s Muslim first two steps toward a Muslim ban were thwarted by federal court orders, not by Congressional Republicans, and his third attempt is largely in effect.

And third, Trump has been in office just over a year. Trump’s ability to deliver on his campaign promises will certainly expand over time. Congressional independence has visibly shrunk – last July, Congress voted by veto-proof margins to preserve Barack Obama’s Russia sanctions, but I doubt that veto-proof majorities could be mustered for that purpose today. We will also see erosion of judicial resistance to Trump’s authoritarian campaign promises, as Trump continues to nominate partisan conservatives to the federal bench, including the Supreme Court, and as the Republican-controlled Senate continues to confirm them in unquestioning haste.

Douthat stated his argument in opposition to an argument published in this month’s Atlantic, titled “Boycott the Republican Party.” The thesis of the article is that

“The Republican Party, as an institution, has become a danger to the rule of law and the integrity of our democracy. The problem is not just Donald Trump; it’s the larger political apparatus that made a conscious decision to enable him.”

The Atlantic authors draw this conclusion from their thesis:

“the best hope of defending the country from Trump’s Republican enablers, and of saving the Republican Party from itself, is to . . . vote mindlessly and mechanically against Republicans at every opportunity, until the party either rights itself or implodes (very preferably the former).”

In other words, the argument runs, it is the duty of a patriotic conservative to vote for Democrats until Trump is stopped – whether because Trump is gone or because the Republican Party has regained its moral compass and sufficient spine to stop enabling Trump’s authoritarian and destabilizing efforts.

The undoubtedly redoubtable Douthat doesn’t differ very much with that premise. Douthat calls himself “a conservative who opposed Trump, attacked the party for nominating him, argued that he could reasonably be removed from office for unfitness, and generally regards the G.O.P. as a broken vehicle for serious policymaking.” He calls “the acquiescence of leading Republican politicians to the rise of Donald Trump” a “moral abdication and . . . and a reason to root for their defeat.”

But Douthat maintains that some Republicans are standing up to Trump, and those Republicans should be allowed to remain. Douthat names only one name, a senator who isn’t up for re-election until 2022; I can think of no Congressional Republican who is both standing up to Trump and running for re-election in 2018. But Douthat seems to think there are some, and so he argues for a more discriminating vote. Douthat argues that conservative voters who object to Trump should oppose specific Republicans who are enabling Trump but support specific Republicans who are not. Douthat seems to perceive more enabling in the House, and more containing in the Senate, and he allows that maybe conservatives should vote for Democratic House candidates and Republican Senate candidates in 2018.

Douthat acknowledges that Trump is just one year into his presidency, and therefore that all judgments of Trump’s presidency – Douthat’s presumably included – are “provisional.” And Douthat acknowledges the possibility that events would change his mind, the first on his list of such possibilities being “if Trump were to actually fire Rosenstein and Mueller and close down the Russia investigation and Senate Republicans did nothing.”

But here’s the problem with that: if we wait for Republicans to do nothing before we decide to toss them out, it’s too late. If Trump fires Rod Rosenstein and Robert Mueller and shuts down the Russia investigation, and Republicans in the Senate do nothing, it will avail us little to vote at the next election to throw the Republicans out.

How confident can we be that a Republican-controlled Senate would act effectively to contain such an outrageous abuse of power by Republican President Trump? If we’re 90 percent sure, then maybe Douthat is right, and maybe conscientious, patriotic anti-Trump conservatives can afford to take a chance that a Republican-controlled Senate will do its job. What if the odds are 80 percent? Or 70 percent? What if it’s just 50-50? How low do the odds have to go before we’re unwilling to bet the future of American democracy?

I personally am a relatively risk-averse guy. I’ll put five bucks into the office March Madness pool, because I can afford the probable loss of five dollars. But the bigger the stakes are, the better the odds have to be to get me to bet. And the stakes don’t get much bigger than the future of democracy and the rule of law. I won’t bet those stakes unless the odds in my favor are right up against 100 percent. And there really isn’t any denying that a Democratic-controlled Senate is much more likely to take action against Trump’s authoritarian excesses than a Republican-controlled Senate is.

Conscientious, patriotic anti-Trump conservatives must vote for Democrats in 2018, up and down the ballot, in federal, state and local elections. Neither sitting the election out nor voting for third-party or write-in candidates would be as strong a rebuff to Trump’s enablers as would be the election of Democrats. The enabling will continue until Republican losses shake Republican leadership out of its moral stupor. Voting for Democrats is the most direct and effective means to that end, and the only way to take the Republican Party away from Donald Trump.


“Bias” at the FBI

Judges are held to a higher standard of impartiality than members of any other profession. The American Bar Association’s model code of judicial conduct has just four “canons,” or general rules, and three of them have the word “impartiality” or “impartially” right in their titles; the fourth one instructs judges that they must conduct their “personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office,” the chief such obligation being impartiality.

But nowhere in those canons, in the rules implementing the canons, or in the commentary explaining the rules and canons, is there any prohibition against judges holding political opinions. The canons, rules and commentary focus exclusively on the public expression of political opinions – for instance, a judge may not contribute to a political campaign, make speeches on behalf of a political organization, or publicly endorse a candidate for public office. A judge may hold political opinions, even very strong partisan opinions, and may express those opinions privately – for instance, within her family, to friends, in the voting booth.

I served for a little more than ten years as an administrative law judge in New York City government, where I was subject to the ABA’s model code of judicial conduct. I was appointed to three five-year terms by three different mayors: Ed Koch, Rudy Giuliani and Mike Bloomberg. I had voted against Koch in the Democratic primaries, and I strongly disagreed with his politics, especially during his third term – which is when I was appointed. I disagreed even more strongly with Giuliani’s politics, and voted against him all three times he ran for mayor – the time he lost, and then the two times he won. And although I found a lot to like in Bloomberg’s mayoralty, I never preferred him to his Democratic opponents, for whom I voted all three times that Bloomberg ran for mayor.

Yet no one ever asked me for my political views, and no one never ever raised a question whether my political views impaired my qualification to serve as an impartial adjudicator. In fact, when Giuliani’s chief of staff, Randy Mastro, interviewed me for re-appointment in 1994, he seemed to assume that many Giuliani appointees, and maybe me specifically, had voted against his boss: “We’ve appointed a lot of people who disagree with us,” Mastro told me very matter-of-factly.

Criminal prosecutors are held to a standard of impartiality that is significantly less rigorous than the standard applicable to judges. District attorneys, who are the chief municipal-level prosecutors across the country, run partisan campaigns for their offices. A candidate for district attorney is publicly known to be a Democrat or a Republican, and often campaigns aggressively on that partisan loyalty. Yet we expect our district attorneys to investigate and prosecute criminal allegations even-handedly, regardless of their own party loyalties and regardless of the partisanship of the accused.

In 43 states, attorneys general are similarly elected. In five states they are appointed by governors, and in Maine the attorney general is elected by the legislature – both governors and legislators being partisan actors, fully expected to favor appointees who hold political and partisan views similar to their own. Only in Tennessee is the attorney general selected by the state supreme court, which provides a level of insulation between the attorney general and partisan politics. We don’t expect state attorneys general to hold no political opinions, but we expect them to enforce the law without regard to partisanship.

And finally, of course, top federal law enforcement officials are politically appointed. In the Department of Justice alone, more than 200 officials are appointed by the president and subject to confirmation by the Senate.

It has never been required that Justice Department lawyers or FBI investigators have no partisan political views. It has only been required that those lawyers and investigators set aside those opinions and investigate and prosecute crimes even-handedly.

Until now.

Republicans in Congress have joined Donald Trump in decrying anti-Trump views held by individuals employed within the Department of Justice, including the FBI. Republicans claim that those partisan opinions prove the unfairness of the FBI’s investigation of Russian interference in the 2016 presidential election.

There are at least two things that are odd about this. First, no one is suggesting that Republican partisanship constitutes bias in the same way that Democratic partisanship supposedly does. No one is suggesting that Robert Mueller, Rod Rosenstein, or any of the other Republican Party members who earn their paychecks from the Department of Justice is incapable of investigating and prosecuting allegations against Republicans. No one is suggesting that Trump not be allowed to appoint Republicans to replace all of the United States attorneys that he fired last March 10.

Second, the anti-Trump opinions that individual Justice and FBI employees are known to have expressed are not fundamentally different than the anti-Trump opinions that many, maybe even most, Republican leaders and elected officials themselves expressed during the 2016 Republican primaries, and even during the general election campaign, especially in the wake of the “Access Hollywood” audio disclosure. Perhaps my favorite was former Illinois Republican Senator Mark Kirk, who colorfully called Trump “a malignant clown — unprepared and unfit to be president of the United States.”

What seems especially problematic to me is that the opinions that are now being exploited to show an infestation of bias at Justice and the FBI were all privately expressed – text messages and e-mails, not public speeches or op-ed pieces. And those privately expressed opinions only came to light because Congressional committees, chiefly the House Intelligence Committee, forced them to light.

There is a precedent for this. Wisconsin Senator Joseph McCarthy made his name, and his legacy, with the question, “Are you now, or have you ever been, a member of the Communist Party?” For McCarthy, a person’s political views were the fair subject of inquiry, because, he felt, even formerly held political views, if McCarthy disagreed with them strongly enough, disqualified a person from public office – or even from acting in or directing Hollywood movies.

Of course, McCarthy expanded beyond Communist Party membership. He sought to expose people who had merely associated with Communist Party members – anyone who has a Communist friend, the logic goes, must be a Communist, and is disqualified from employment as fully as the Communist himself – thus terms like “fellow travelers” and “Communist sympathizers” and “pinkos” came to the American vernacular.

Now that Devin Nunes has successfully exposed the Department of Justice and the FBI as deep state hives of Democrats and their fellow travelers, he has promised to move on to other agencies, including the State Department. This is especially ominous, ringing as it does with overtones of McCarthy’s famous list: “I have here in my hand,” he said in 1950, “a list of 205 [State Department employees] that were known to the Secretary of State as being members of the Communist Party and who nevertheless are still working and shaping the policy of the State Department.”

McCarthy never released even one name from his alleged list. But his name was made, and his popularity soared among Cold War-era Americans fearful of the Communist spread from the Soviet Union to Eastern Europe and China. McCarthy’s legacy is the methodology named after him: McCarthyism is the use of innuendo instead of hard evidence to support allegations of disloyalty, and the use of allegations of disloyalty to discredit and disable political opponents, appealing to popular fear instead of reason.

If you work for the federal government, Devin Nunes wants to know: are you now, or have you ever been, a member of the Democratic Party? Do you now hold, or have you ever held, a critical view of Donald Trump? And he intends to read your e-mails and text messages to find out.

Some prominent Republicans, mostly out of government in the commentariat, but also a few in government, like Arizona Senator John McCain, have questioned Nunes’s tactics. But the news media, especially after a year of unrelenting attacks from the highest office in our Republic, no longer has the stature and credibility that enabled Edward R. Murrow to bring McCarthy low:

“We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men.”

As yet no one has shown the courage and the character to confront Nunes, as Joseph Welch confronted Joseph McCarthy: “Have you no sense of decency, sir? At long last, have you left no sense of decency?” Even if such a person exists today, I’m not sure it would make much difference.

So I suggest that this is the question on which hinges the future of American democracy: in our era of Trumpism, which more than anything else is devoted to the subjugation of institutions to the personality of the president, is there any American institution left with sufficient clout and credibility that its representatives could effectively stand up to today’s McCarthyism?


Dr. Jackson is Lying

Donald Trump just completed his first physical exam as president. The White House physician, Dr. Ronny Jackson, reports that the president is in “excellent” health, but Dr. Jackson knows that’s not true.

In particular, Dr. Jackson reports Trump’s height as six feet and three inches, and his weight as 239 pounds. The inaccuracy of both numbers is obvious to anyone who’s been paying attention.

Trump’s 2012 New York State driver’s license gives his height as six feet and two inches. His pre-White House doctor, the comically famous Dr. Harold Bornstein, used to list Trump as six feet and two inches tall. And if there’s anything we know for sure about Trump, it’s that he never understates his own size – when it comes to Trump’s opinion of Trump, size matters. So when Trump told the New York State Department of Motor Vehicles that his height was six feet and two inches, we can be confident he was not underestimating.

Furthermore, pictures of Trump standing next to his one-time Republican primary rival, Jeb Bush, show that Bush is distinctly taller than Trump. And Bush, it seems that everyone agrees, is six feet and three inches tall. Trump is easily more than an inch shorter than Bush, as this exemplar clearly shows. If you Google “images of Trump standing next to Jeb Bush,” you’ll find any number of similar photos.

Dr. Bornstein gave candidate Trump’s weight as 236 pounds. Many doubted that figure, and in fact numerous press reports before then had given his weight as 267 pounds, although Dr. Bornstein claimed that Trump had lost 15 pounds in the previous year.

But even if Trump really weighed in at 236 pounds in 2016, that would mean that Trump has gained only three pounds since then. It was widely reported in May 2017 that Trump had gained weight – not an observation typically triggered by three pounds. A quick photo comparison of pre-presidential Trump to the bloated buttocks and massive midsection of the current Trump conclusively proves that the weight gain has been much more considerable. There is simply no way that Trump weighs just three pounds more now than before he moved into the White House.

Why would the White House lie about Trump’s height and weight? It’s important to Trump that everything about Trump be excellent – even the best ever. You’ll remember that Dr. Bornstein reported to us in December 2015 that Trump’s health was so “astonishingly excellent” that if elected he “will be the healthiest individual ever elected to the presidency.”

Body mass index is widely used as a rough calculation of a person’s weight category: severely underweight, underweight, normal weight, overweight, and obese. The most widely accepted BMI threshold for obesity is 30.

BMI is a metric calculation: a person’s BMI is the person’s weight in kilograms divided by the person’s height in meters, squared. At the height and weight Dr. Bornstein reported, Trump’s BMI would have been 29.5, just short of obesity. Had Dr. Bornstein correctly reported Trump’s height, his BMI would have been 30.3, or slightly obese. Had Dr. Jackson correctly reported Trump’s height and his post-inaugural weight gain, the BMI might be as high as 35.

An obese person is not necessarily in bad health. But by definition, a person who is obese is not in “excellent” health, which is the lie that Dr. Jackson told us.

What’s remarkable to me about this story is not that Trump’s narcissism won’t allow him to admit to obesity. What’s remarkable to me is the ease and frequency with which Trump is able to prevail on people of accomplishment and reputation to lie on his behalf. It’s not just Dr. Jackson, who is a rear admiral in addition to being the White House physician, and until now has been widely admired as a “straight shooter.” In recent days we’ve also seen two United States senators and a cabinet secretary lie – repeatedly, and in the case of the cabinet secretary, under oath before a Senate committee – to cover up Trump’s racist rant against “shithole countries.”

Lying to cover up a president’s obesity is silly. Lying to cover up a president’s racism is very, very serious.

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One more thing. The fact that President Trump has “perfect” cognition in no way implies that he is not mentally ill; it only means that his mental illness is not dementia. I never doubted President Trump’s cognitive abilities, and I never suspected that he suffers from dementia. It’s always been clear to me that Trump’s mental illness is a fairly severe case of narcissistic personality disorder. Check out the “symptoms” section under “narcissistic personality disorder” on the Mayo Clinic’s web site and see if you can find one that Trump doesn’t have.


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