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Wallowing in the Brexit Mud

Readers of a certain age will remember a popular 60 Minutes segment from the 1970s, called “Point/Counterpoint.” Each week, a conservative commentator and a liberal commentator faced off, the conservative being James Kilpatrick, and the liberal being Nicholas von Hoffman until 1975, then Shana Alexander.

That being the 1970s, an entirely different media age, the debate was orderly and civil. The debaters spoke one at a time, and they used indoor voices and polite language.

Readers of that certain age will also remember the “Point/Counterpoint” parodies featured on Saturday Night Live in its early years. Dan Aykroyd stood in for James Kilpatrick, and Jane Curtin for Shana Alexander. The debate typically followed the orderly, civil model of the real “Point/Counterpoint” until the last sentence of the opening statement, which sent the discussion off into mean-spirited personal attacks. The rebuttal would continue the nastiness. Aykroyd’s rebuttals began, “Jane, you ignorant slut,” and Curtin’s began, “Dan, you pompous ass.”

The ad hominem stuff was funny because it was implausible. Back then, in the context of a televised discussion of a serious public issue, venomous personal attacks and juvenile name-calling by serious commentators wasn’t done. It wouldn’t be so incongruous today.

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Watching the Brexit fiasco has given me a certain begrudging admiration for British Prime Minister Theresa May – begrudging because I disagree with most of her policy positions. When the Brexit referendum somewhat unexpectedly passed, May’s predecessor resigned and May was elected to lead the Conservative Party and therefore the British government. She devoted herself to implementing the referendum outcome, even though she disagreed with it.

There was a certain delusional aspect to the Brexit campaign. Brexiteers egregiously underestimated the complexity of disengaging from the social, political and economic arrangements wrought by reams of treaties negotiated and ratified over 45 years. If Trump’s proposed withdrawal from NAFTA would be disruptive, Brexit will be exponentially more disruptive. Two generations of Brits have organized much of their lives around a regime that Brexiteers proposed to leave within two years. And it was unrealistic to imagine that the European Union, eager to discourage further departures that would unravel the Union, would lift a finger to make Brexit easier.

Although the Brexit referendum was binary (Leave or Remain), in reality there are three primary Brexit options. There’s hard Brexit, or no-deal Brexit, in which Britain would leave the Union entirely, falling back on World Trade Organization trade rules under which Britain would trade with Union members on the same terms as with any other country in the world. There’s soft Brexit, in which Britain would negotiate an agreement with the Union that would allow Britain to retain some but not all of the burdens and benefits of Union membership, like Switzerland or Norway. And there’s Remain.

The referendum showed that a small majority of British voters preferred Leave to Remain, but the Leave majority has apparently irreparably broken down into hard Brexit and soft Brexit factions. None of the three Brexit options commands a majority in Parliament. May’s approach, a version of soft Brexit, was soundly rejected by Parliament yesterday, although it’s not clear that any other approach would fare any better.

But whatever you think of May’s policy position (I would have voted “Remain”) and her tactics (she blundered badly in calling a snap election after she became prime minister), you have to admire her persistence and her equanimity in the face of probably insurmountable odds.

Her position hasn’t been made any easier by the Labour Party leader, Jeremy Corbyn. Corbyn has remained vague about his own position, preferring to snipe at May – less by attacking her policy positions than by attacking her competence and even her intelligence. (Corbyn denied calling May a “stupid woman” after being caught on video during Parliamentary debate last month. The Labour Party improbably insisted that Corbyn had said, “stupid people.”)

Although May has not descended quite to Corbyn’s level, she has on occasion responded to him with rhetorical excess. During one Parliamentary exchange, May actually accused Corbyn of wanting to “crash our economy.” This kind of accusation is common in American politics – witness Donald Trump’s assertions that Democrats oppose his coast-to-coast border wall because they favor open borders and violent crime. It’s unsettling to see the once-dignified British Parliament wallowing in the same mud.

But I can’t help putting primary blame for the Brexit incivility on Corbyn. Watching him speak in Parliament, and watching him listen when May speaks, I can’t escape the impression that Corbyn thoroughly loathes May, that he can’t bring himself even to respect the office she holds simply because she holds it.

When Corbyn addresses the prime minister, what I hear is, “Jane, you ignorant slut.”

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In addition to the Saturday Night Live parodies of the 60 Minutes segments, there were two less prominent two movie parodies. The 1977 John Landis film The Kentucky Fried Movie featured a parody skit called “Count/Pointercount” that is still laugh-out-loud funny. The 1980 movie Airplane! had a shorter parody in which the Kilpatrick stand-in takes the pro-disaster position, summing up with “I say let ’em crash.”

 

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Collusion to Obstruct

The June 9, 2016, Trump Tower meeting between three high-ranking members of Donald Trump’s presidential campaign and the Russian government lawyer Natalia Veselnitskaya has always been something of a mystery. After the New York Times reported the meeting in July 2017, commentary focused on whether the meeting proved “collusion” – participation by the Trump campaign in the Russian effort to tilt the 2016 presidential election in Trump’s favor.

I wasn’t willing to go that far. There was – and still is – no evidence that Veselnitskaya actually delivered the promised “dirt” on Hillary Clinton to the Trump campaign representatives; therefore I said the meeting was not proof of actual collusion, but only of willingness to collude. I argued that the meeting proved that the Trump campaign officials who took the meeting – Jared Kushner, Paul Manafort and Donald Trump Jr. – were aware of and receptive to Russian efforts.

I don’t mean to say that awareness and receptiveness are minor matters. Kushner, Manafort and Trump Jr. showed themselves to be willing to abet espionage, or something very close to it, to win the White House for their candidate.

But right from the beginning I’ve had questions about the Trump Tower meeting. Why, for example, would the Russian government go to the trouble of setting up a meeting for the purpose of delivering “dirt” on Clinton, then go to the meeting but not hand anything over? If the Russians’ real purpose in asking for the meeting was not to hand over the “dirt,” then what was it?

Initially, I hypothesized that the meeting was a “dangle” – counterintelligence-speak for a test to determine a target’s willingness to engage in improper or illegal activity. If so, it succeeded: the Trump campaign took the meeting. More than that, the participants’ initial denials of contacts with Russians exposed them to blackmail by the Russians, who obviously knew that they were lying.

Later events prompted me to hypothesize a second explanation for the meeting. Robert Mueller’s July 2018 indictment of Russian hackers revealed that on June 8, 2016, just one day before the Trump Tower meeting, the Russians set up the dcleaks.com web site, the DCLeaks Facebook page, and the Twitter account @dcleaks, to facilitate the release of the Democratic campaign documents that Russian hackers had stolen. In response to that disclosure, I hypothesized that the Russians might have initially asked for the Trump Tower meeting in order to hand over stolen documents, but changed their minds about how to release the documents before the meeting happened; then, rather than cancel the meeting the Russians sent Veselnitskaya to complain about the sanctions that President Barack Obama had imposed against Russia.

But neither hypothesis seemed wholly satisfying. Neither hypothesis explained, for instance, why Donald Trump Jr. didn’t follow up with Rob Goldstone, the intermediary through whom the Russians set up the meeting. There was no “WTF” e-mail – no e-mail from Junior back to Goldstone, asking why Goldstone had wasted his time setting up a meeting on the promise of “dirt” that was never delivered. And if the Trump campaign and the Russians were colluding, neither hypothesis explained how the two parties to the supposed conspiracy could be so much not on the same page.

In the same indictment, Mueller revealed that, by April 2016, the Russians had begun to plan the release of the documents they had stolen from the Clinton campaign and from Democratic Party organizations. April 2016 happens to be the month during which George Papadopoulos, a minor Trump campaign functionary, was told that the Russians had compiled “dirt” on Hillary Clinton, in the form of “thousands of emails.”

Although Mueller’s indictments don’t explicitly say it, it’s inconceivable that a striver like Papadopoulos, eager to prove his own importance, didn’t pass this information on to his superiors in the Trump campaign. So even assuming the Trump campaign had no knowledge of Russian willingness to share stolen documents before April 2016, it certainly did by then. Such knowledge would explain the complete lack of any expression of surprise by Trump Jr. when Goldstone casually mentioned the Russian government’s “support for Mr. Trump” and its offer to provide “dirt” on Clinton.

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Last weekend, investigative reporters published two new disclosures. On Friday, the New York Times revealed that the FBI’s counterintelligence investigation into Russian election interference, since transferred to Mueller, includes the question whether President Trump is “working on behalf of Russia against American interests.” On Sunday, the Washington Post revealed that Trump had gone to lengths to conceal the substance of his private meetings with Russian President Vladimir Putin from his own staff – going so far as to confiscate the notes of his translator on one occasion and instruct the translator not to discuss the meeting with Trump’s staff.

The Times revelation prompted the commentator Benjamin Wittes to speculate on the Lawfare blog Friday that “the obstruction was the collusion—or at least a part of it.” Wittes suggested that Trump may be colluding with the Russians to obstruct investigation into Russian election interference, regardless of the extent of the Trump campaign’s participation in that interference.

Yesterday, MSNBC’s Chris Hayes went one big step farther. Interviewing the EmptyWheel blogger Marcy Wheeler, Hayes had Wheeler explain her theory that President Trump and President Putin colluded on the response to the Times disclosure of the Trump Tower meeting.

The Times asked Trump Jr. for comment on its initial revelation of the Trump Tower meeting, in response to which Junior’s lawyer released a statement asserting that the meeting was “primarily” about a program of adoption of Russian orphans by Americans, a program that Putin had suspended in retaliation for Congressional enactment in 2012 of the Magnitsky Act, and Obama’s implementation of the Act by imposing sanctions on Putin-connected Russians.

After some stonewalling, the White House eventually conceded that President Trump had dictated Junior’s statement, even while both Trump and Junior insisted that Trump had no knowledge of the meeting at the time.

On yesterday’s All In, Chris Hayes reprised Marcy Wheeler’s blog post from June 2, 2018, which didn’t get much attention at the time, but now looks remarkably insightful. In that post, Wheeler reviewed the chronology. On July 7, 2017, the Times asked Donald Trump Jr. for comment on its forthcoming revelation of the Trump Tower meeting. Junior promised to get back to the Times later that day, but didn’t respond until his attorney issued his July 8 statement.

In between, on the evening of July 7, President Trump attended the farewell banquet of the G20 summit in Hamburg. Toward the end of the dinner, Trump got up by himself and walked over to Melania Trump and Vladimir Putin, who were seated apart from Trump but next to each other. Trump and Putin talked, through Putin’s translator, without any American present except to the extent that Melania may have overheard the conversation.

The Trump-Putin conversation was not initially reported by American media. But the meeting caused quite a buzz among the other national leaders in attendance, most of whose countries are close allies with the United States but who were not given the one-on-one attention that Trump gave to Putin. It took just 11 days for the meeting to be reported in the Times. One day after that, Trump sat for an interview with three Times reporters.

The Times reported that the G20 dinner lasted for more than three hours, that the Trump-Putin conversation ran for as much as an hour, and that Trump left the dinner four minutes after Putin left. Trump maintained that the dinner lasted for less than two hours and that his conversation with Putin went only about 15 minutes. Initially, the White House maintained that the conversation consisted of “pleasantries,” but Trump told the interviewing reporters that he and Putin:

“Just talked about — things. Actually, it was very interesting, we talked about adoption. We talked about Russian adoption. Yeah. I always found that interesting. Because, you know, he ended that years ago. And I actually talked about Russian adoption with him, which is interesting because it was a part of the conversation that Don had in that meeting.”

Yes, that is interesting. It’s interesting that Trump is convinced that we’ll believe that American adoption of Russian orphans is very important to Russians. Trump is so convinced that he used it to explain both the Trump Tower meeting and his own previously undisclosed conversation with Putin.

In her EmptyWheel post, Wheeler described “adoptions” as “Russian code for sanctions” – meaning that whenever Trump or any Russian says they talked about adoptions, they actually talked about the Magnitsky Act. This is convincing, of course, because it’s well known that the sanctions really bother Putin, whereas it’s really unlikely that the end of the adoption program costs him much sleep. All the better, of course, if discussing adoptions is code for discussing sanctions – using the code allows discussion of sanctions while preserving deniability that sanctions were discussed.

Wheeler then connected the two dots: Trump contended that he and Putin discussed adoptions, meaning sanctions, on the same night that Trump dictated the Trump Jr. statement on the Trump Tower meeting, which the statement said primarily concerned adoptions, meaning sanctions. Wheeler therefore asked: did Trump dictate the Trump Jr. statement, or, in effect, did Putin?

When Junior got the call from the Times asking for comment on the Trump Tower meeting, what if he called up Dad to ask him what to do? What if Trump went to Putin at the farewell banquet, not to exchange pleasantries but to discuss with Putin how to respond to the Times inquiry? What if Putin suggested that we all say that Veselnitskaya just wanted to talk about resuming the adoption program?

From that angle, almost everything about the Russia investigation looks different. Maybe the Trump Tower meeting wasn’t held to hand over dirt on Clinton – if the Russians had already planned release of the stolen documents through DCLeaks, Guccifer 2.0 and Wikileaks, maybe the purpose of the meeting was to tell the Trump campaign the Russians’ asking price for publicly revealing the dirt publicly and without any immediately visible Trump campaign fingerprints. Maybe the price was the lifting of the Magnitsky Act sanctions – or, in code, the resumption of the adoption program.

The first leak of stolen documents occurred on June 14, 2016. Wikileaks published its first installment of stolen e-mails on July 22, 2016.

Trump Jr. said that he told Veselnitskaya that sanctions would better be discussed after Trump won. Veselnitskaya did exactly that, making repeated efforts to discuss the issue with Trump’s representatives after the election. Through Michael Flynn, Trump resisted the imposition of additional sanctions by Obama, in response to Russian election interference.

Ultimately, Trump fired Flynn, not because Flynn lied about his sanction-related conversations with Russians, which Trump must have known about and probably had directed; and not because Trump’s acting attorney general warned him that Flynn was vulnerable to Russian blackmail because of these lies. Trump fired Flynn only after Flynn’s lies were publicly disclosed.

Trump asked then-FBI Director James Comey to go easy on Flynn. Comey wouldn’t agree. Worse, in Congressional testimony on March 20, 2017, Comey confirmed reports that the FBI was investigating Russian election interference, including whether any Trump campaign officials participated in that interference. On May 9, 2017, Trump fired Comey – initially invoking the laughable pretext that Comey’s public discussion of the Clinton e-mail investigation had breached Department of Justice rules, but later admitting that he had fired Comey because Trump believed that allegations of collusion were a hoax. Implicit was Trump’s expectation that firing Comey would end the investigation.

The next day, Trump met in the Oval Office with a Russian delegation led by Russia’s foreign minister, Sergey Lavrov, and the Russian ambassador, Sergey Kislyak. (This was the same meeting at which Trump revealed classified Israeli counter-terrorism information.) Trump bragged to the Russians that he had sacked Comey, a “nut job,” and that Comey’s firing relieved the “great pressure” that Trump had been under “because of Russia.”

Media commentary at the time was unanimous that Trump fired Comey because Comey was investigating Trump campaign collusion with Russians. In retrospect I’m not sure it was that simple. I think Trump believed that firing Comey would end the FBI’s investigation into Russian election meddling entirely, not just into Trump campaign officials’ culpability. From the beginning, Trump has rejected the conclusions of American intelligence agencies that Russia interfered in the 2016 election – either out of genuine disbelief or out of loyalty to Putin. Just six months ago, Trump spoke admiringly of Putin’s “strong and powerful” denial of election interference, and he gave his opinion, which was either a lie or dangerously naïve, that he could see no reason that Russia would interfere in our elections.

Trump was clearly taken by surprise when Deputy Attorney General Rod Rosenstein’s response to Trump’s firing of Comey was to appoint a special prosecutor to pursue the counterintelligence investigation into Russian election interference, including the question of American participation in that interference, and the question whether anyone, Russians, Americans or otherwise, committed crimes along the way.

All of this leads us back to Ben Wittes’s question: what if Trump’s obstruction of the counterintelligence investigation is the collusion that we’ve been looking for? Or at least, what if the obstruction is the post-inaugural part of that collusion? Trump argues that the exercise of his constitutional authority to fire his officials and to direct the conduct of criminal investigations is not impeachable, and that argument has a certain appeal to his loyalists. It’s much harder to see any appeal in an argument justifying the obstruction of a counterintelligence investigation into espionage by a hostile foreign power.

 

A Difference of Opinion is Not a National Emergency

President Donald Trump’s threat to declare a national emergency and order the construction of a border wall without Congressional authorization has prompted a lot of talk about whether federal statutes would permit the action that Trump is apparently contemplating. Less attention has been paid to the implicit constitutional question: assuming that federal statutes allow Trump to build his wall unilaterally, are those statutes constitutionally valid?

Article 1 of the United States constitution vests “all legislative powers” of the federal government to Congress. That doesn’t mean that every legal rule is contained in legislative text. Executive agencies interpret the statutes they are charged to enforce and promulgate rules to refine their statutory mandates, and courts issue rulings to decide disputes over the interpretation and application of statutes. So, for instance, Congress might pass a law that requires specific players in specific situations to act “within a reasonable time,” leaving it to executive agencies’ rulemaking authority, to the courts, or even to private parties’ contract negotiations to decide how much time is reasonable and how much is not.

Still, the source of both the executive and the judicial authority is the statute itself. Except where the constitution directly creates executive or judicial authority, neither can act without statutory authorization. The president can only act as authorized either by a federal statute or by the constitution itself.

In the case of a national emergency, the constitution itself provides very limited direct authority for executive action. The classic example is war: when incoming missiles are in the air, the president doesn’t have to wait for Congress to declare war to initiate defense and to counter-attack.

In the case of Trump’s wall, the public discussion has mostly concerned the question whether or not there is a genuine national emergency. I don’t want to minimize the importance of that discussion, and, for all the reasons that have been well rehearsed in the media, I’m skeptical that the statutory provisions governing national emergencies cover this situation: illegal immigration is in no way a new problem, and in fact has been decreasing for some time, and the president’s preferred solution, a wall, is not the only solution, or even the best solution to that problem.

But there’s an aspect of this situation that isn’t getting a lot of attention. Unlike any previous declaration of a national emergency, in this case the supposed emergency arises not from external events but from Congressional refusal to approve the president’s preferred solution to the problem of illegal immigration.

What we have is a difference of opinion. Trump wants to build a wall but the House thinks the wall is a huge waste of time and money. The Senate falls somewhere between the other two – the Senate would prefer to do without a wall, but on the other hand is willing to go along with Trump if he really insists on it.

The wall does not address an unforeseen need, or a need that arose so quickly that Congress couldn’t act in time to meet the need effectively. The supposed need for the wall was long foreseen, and was presented to Congress in plenty of time for it to act. The supposed emergency arises only because Congress just doesn’t agree with the president that there is a need for a wall.

So let’s say for the sake of discussion that the federal emergency statutes (most importantly, chapter 34 of title 50 of the United States Code, the National Emergencies Act of 1976) allow President Trump in this situation to build his wall without Congressional authorization and without Congressional appropriation of funds. That would mean that the president could present a legislative proposal to Congress, but if Congress rejected it the president could carry out his proposal anyway. In that case, the constitutional vesting of “legislative power” in Congress would be irrelevant.

It simply can’t be that the constitution allows the president to proceed unilaterally without Congressional authorization where Congress has refused (in this case, for nearly two full years) to give its approval. The constitution vests legislative power in Congress, and where Congress duly considers and rejects a proposal submitted by the president, the president may not simply go ahead anyway. And to the extent that any federal statute might say otherwise, that statute is unconstitutional.

 

 

 

2020 Vision in 2019

With Elizabeth Warren first out of the gate in the race for the 2020 Democratic presidential nomination, media commentators are all a-blather about the presidential primary campaign. But before we get to 2020, we should pay some attention to 2019.

This is what’s called an “off year” – state-wide elections are scheduled only in five states: Kentucky, Louisiana, Mississippi, New Jersey and Virginia. These five might not seem like fertile ground for Democrats, especially in deep red Kentucky, Louisiana and Mississippi, or in New Jersey, which seems so blue that all roads lead downhill.

In off-year elections, like special elections, the national parties can focus their resources on a relatively few races – unlike bigger election years like 2018, or in 2020, when resources are spread thin. So I think it’s unlikely that 2019 will produce the kind of earthquake we saw in the 2018 midterms. It’s more likely that we’ll see the kind of voting trends we saw in 2017 – a big popular move toward Democrats, but a relatively small shift in actual election outcomes.

In any event, 2019 will probably tell us a lot about what 2020 is going to look like. Either Democrats continue the gains they made in 2017 and 2018, and Republicans are in big trouble in 2020, or Republicans slow Democrats’ gains and stay in the game for 2020.

We have three gubernatorial elections this year, in Louisiana, Kentucky and Mississippi. In Louisiana, first-term incumbent Democrat John Bel Edward is running for re-election, and early polling shows him well ahead. In Kentucky, the only publicly available poll shows first-term incumbent Republican Matt Bevin running behind one prominent potential Democratic candidate and statistically tied with two others.

Before writing off deep red Mississippi, Democrats should consider that their most likely nominee is Jim Hood, the state’s four-term attorney general and only state-wide elected Democrat. Hood has obviously figured out the Mississippi formula: over four elections, his average margin of victory is about 17 percent.

Donald Trump won Louisiana in 2016 by 20 percent of the vote, and Kentucky and Mississippi by about 30 percent. A Democratic win in any of those states would be a bad sign for Trump and his party going into 2020. Even just running close, especially in Kentucky or Mississippi where Democrats are not incumbent, would send a strong signal about the direction of the 2020 elections.

State legislative elections will be held this year in Louisiana, Mississippi, New Jersey (Assembly only) and Virginia. In New Jersey in 2017, Democrats took back the governor’s mansion and added slightly to their already large majorities in both houses of the legislature. It would be natural for voters to react in 2019 by diminishing Democrats’ majority in the Assembly slightly. In any event, New Jersey in 2019 seems unlikely to tell us much we don’t already know about 2020.

Virginia is considered to be one of the most gerrymandered states in the country. Still, in 2017, when only the House of Delegates was up for election, Democrats wiped out a large Republican majority and came within one seat of taking control of the House. This year, both houses are up for election. We’ll see whether Democrats sustain or even build on their gains in the House and whether Democrats can make similar gains in the state Senate – or whether Republicans, running on district maps they drew for themselves after their 2010 landslide, roll back Democratic gains. Either way, these elections will tell us a lot about 2020.

Louisiana is also considered to be one of the worst-gerrymandered states in the country. Both houses of the Louisiana legislature serve four-year terms, so 2019 will be the first legislative elections since Trump’s election. If Democrats make significant gains in deep red Louisiana, despite fairly severe gerrymandering, it will be a bad sign for Republicans – not because Trump would be in any danger of losing the state in 2020, but because a loss of support there would likely be replicated in other states that are more pink or purple than deep red Louisiana.

Like Louisiana, Mississippi elects both houses of its legislature every four years; unlike Louisiana, Mississippi isn’t near the top of the list of the worst gerrymandering offenders. So the state’s legislative elections this fall should be interesting. Republicans hold large majorities in both houses. Significant Democratic gains on a relatively level playing field in a deep red state would signal trouble for Republicans in 2020 – as with Louisiana, not because Trump would be in any danger of losing the state, but because loss of support in Mississippi would likely be replicated in other, more closely contested states.

More than a dozen of America’s largest cities are holding mayoral elections in 2019. Given the starkly partisan urban-rural divide in this country, most of our big cities are already run by Democrats. Potentially the most interesting mayoral race will be in Jacksonville, where Republican incumbent Mayor Lenny Curry is running for a second term. Jacksonville, Florida’s largest city and the country’s 12th largest, is traditionally conservative. In recent years its white majority has voted Republican, while its non-white minorities have leaned Democratic. But the non-Hispanic white majority has dropped from 77 percent in 1970 to 59 percent in 2010, while African-American, Hispanic and Asian-American minorities have all grown.

Donald Trump won Florida in 2016 by just 1.2 percent of the vote. A significant shift toward Democrats in Florida’s largest city would be a bad sign for Trump’s re-election prospects. If Trump were to lose Florida in 2020 and just one other state that he won in 2016, in all likelihood he would lose re-election.

 

Ellen DeGeneres and Second Chances

Growing up in a conservative small town in the 1960s and early 1970s, I didn’t meet anyone I knew to be gay until after I graduated from high school, and I only heard of one person being gay. We read a James Baldwin essay in my tenth grade English class; the essay impressed me, and I mentioned it to my mother. Mom commented that Baldwin was “a homosexual,” paused, and added, “but then in his circle, that’s not such a bad thing.” Left unsaid was that in our circle, being gay was indeed a bad thing.

In those times, all of us – including gay people; including me – were raised to think that gay people were damaged or deficient in some way; some thought morally, others thought psychologically. Like other gay people, I was forced to struggle with those beliefs by the immediacy of the conflict between my belief that gay people are deficient and the stark fact that I am gay.

Before I came out, every single person I knew – including myself – held beliefs that today would be called homophobic. As I came out, beginning in my junior year in college, I found that coming out puts straight people into a less direct version of the gay person’s struggle between belief and identity – in their case, the struggle arises from the conflict between their belief that gay people are deficient and their new knowledge that I, their relative or friend or neighbor or classmate, am gay.

If everyone in your world – literally everyone you know, and everyone you ever knew – once held homophobic opinions, you don’t judge people by their past beliefs, but by their current beliefs and their future potential. You learn that beliefs can change, and you undertake to help that change along.

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I’ve always liked Kevin Hart. I first came across him on cable TV stand-up comedy shows in the early 2000s, and I liked his style of humor. He had survived a hard childhood, and his routines showed self-mocking humility and an endearing need to be liked. I enjoyed his 2009 breakthrough, “I’m a Grown Little Man,” and most of his subsequent stand-up work, and I enjoyed his 2015 profile in Rolling Stone.

Early in his career, Hart would drop an offensive line or two about gay people into his routines, and I wasn’t happy about that. But it didn’t negate what I did like about his comedy.

On December 4, it became known that Hart would host this February’s academy awards show, fulfilling his long-held dream. The next day, four of Hart’s tweets from 2009, 2010 and 2011 were re-tweeted, along with a quotation from Hart’s 2010 comedy routine, Seriously Funny. The tweets and the quote were undoubtedly homophobic: two tweets used the word “fag”; one tweet and the quotation referred to Hart’s hope that his son is not gay.

Before moving on, I have to ask this question: on the theory that only those without sin may cast stones at sinners, I ask, who among you does not hope his or her child is straight? I hereby bestow my blessing upon those with your hands raised: if you choose to attack Kevin Hart for hoping his son is straight, you may do so without hypocrisy.

The question whether Kevin Hart once held homophobic views isn’t that important to me. What’s important to me is whether Kevin Hart recognizes that those views are homophobic; whether he understands that expression of those views hurt people;  whether his views have changed. Kevin Hart passes my test.

Referring to the joke about preventing his son from being gay, Hart said in his 2015 Rolling Stone profile that he “wouldn’t tell that joke today.” He said that the point of the joke was his own insecurities – his own “panic” about the possibility that his son might be gay.

After his earlier tweets were re-tweeted last month, Hart insisted that he had grown and evolved from the younger man who said those things. He called his words “insensitive,” he acknowledged that he had “hurt people,” and he apologized. The executive director of GLAAD, Gay and Lesbian Advocates and Defenders, one of the oldest and foremost gay advocacy organizations in the country, said that Hart had made “a mistake” in bowing out of his Oscar-hosting role, and that instead he should have used the Oscar stage as a platform “to build unity and awareness.”

Yesterday, Hart went on The Ellen Show with Ellen DeGeneres, who for more than 20 years has been one of the most prominent gay figures in American popular culture, since she came out on The Oprah Winfrey Show in 1997. About his anti-gay remarks, Hart told DeGeneres, “I’m wrong for my past words. I say it. I said it. I understand that. I know that. My kids know when their dad messes up, I’m in front of it because I want to be an example so they know what to do.” He referred to the Seriously Funny joke as the work of an “immature comedian,” to which, as “a grown man,” he wouldn’t “go back.”

DeGeneres tweeted that she had found Hart’s apology to be “authentic and real”: “I believe in forgiveness. I believe in second chances.” She endorsed his restoration as host of this year’s Oscars, which briefly looked possible.

I believe in taking “yes” for an answer. We want people who hold homophobic views to evolve into more tolerant and accepting people. We want people who have expressed intolerant views to apologize. When someone does what we want them to do, we should be willing to accept it.

*          *          *

Some have criticized Hart because his initial response to the re-tweeting of his earlier tweets was defiant: “Guys, I’m almost 40 years old. If you don’t believe that people change, grow, evolve as they get older, I don’t know what to tell you. If you want to hold people in a position where they always have to justify or explain the past, then do you.” Some have criticized Hart because he bitterly objected to the search through his old tweets for something to attack him with: “To go through 40,000 tweets to get back to 2008, that’s an attack. That’s a malicious attack on my character. That’s an attack to end me…. This wasn’t an accident. This wasn’t a coincidence. It wasn’t a coincidence that the day after I received the job that tweets just somehow manifested from 2008.”

I would have preferred that Kevin Hart’s apology not be accompanied by his complaint about the man who dug up Hart’s own words. But I don’t want to hold against someone who is trying to be better that he is not yet perfect.

I also would have preferred that Hart host the Oscars, so that both he and the Academy could use the occasion as an opportunity to advance the discussion. I can easily imagine a self-deprecating comedy routine centered on the subject – Richard Pryor comes to mind, as does George Carlin; both did routines that mocked homophobia.

I suspect that Hart could have pulled it off.

 

Republicans Choose Freedom, Sometimes

During ceremonies at yesterday’s opening session of the 116th Congress, outgoing Republican Majority Leader Kevin McCarthy spoke briefly before passing the gavel to incoming House Speaker Nancy Pelosi. Most of McCarthy’s remarks were benign and at least plausibly non-partisan, but the one partisan jab he threw caught my attention:

“There is one core principle upon which we will not compromise. Republicans will always choose personal freedom over government control.”

The remark caught my attention because it is so blatantly untrue. I’ve never heard a Republican advocate repeal of all criminal law, for instance, and criminal law is perhaps the strictest government limitation there is on personal freedom. Imprisonment is a pretty considerable limitation.

I’ve never heard a Republican advocate repeal of immigration law, contract law, intellectual property law, tort law, or any of many other areas of law by which our government limits our personal freedom. As much as Republicans would like to reduce taxes, I’ve never heard a Republican advocate repeal of all tax law. As much as Republicans want to reduce government regulation, as far as I know no Republican wants to abolish drivers’ licenses.

Republicans notoriously favor limitations on women’s personal reproductive freedoms, most emphatically the freedom to get abortions. And until quite recently, almost all Republicans were overtly hostile to same-sex marriage, despite the fact that legal prohibitions against same-sex marriage constituted a substantial government control of personal freedom. Many Republicans would still like to end the personal freedom of same-sex couples to marry. Many Republicans want to limit the personal freedom to vote, whether by reducing early voting opportunities, by eliminating polling stations, by reducing voter registration opportunities, by requiring voters to produce specific types of government identification, or by other means.

In addition to the blatant falseness of McCarthy’s description of Republican ideology, I was struck by his implicit assertion that Republicans care about limitations on personal freedom only if those limitations are imposed by government. Limitations on personal freedom that are imposed by private parties are not, at least in McCarthy’s words, a Republican concern.

This implicit assertion is also false, of course. Criminal law exists to protect against limitations on personal freedom that might be imposed by other people, not by the government. We prohibit homicide, for instance, not to protect us against our government, but to protect us from each other. Indeed, that kind of third-party protection is the essence of Republicans’ position on abortion: Republicans limit a woman’s freedom to get an abortion in order to protect her unborn fetus, not from the government, but from the mother and her doctor. (Democrats, on the other hand, generally believe that personal freedoms belong to persons, and that fetuses are not persons.)

Still, McCarthy’s remark focused my attention on a central difference between Democrats and Republicans. Democrats believe that government should protect people against limitations on personal freedom that are imposed by the wealthy and powerful. Most Republicans, as far as I can tell, do not believe that.

Democrats would limit the disproportionate ability of wealthy individuals and corporations to influence elections, but Republicans place priority on the personal freedom of the wealthy to spend their money as they see fit. Democrats believe that government should protect us from the harmful side effects of free enterprise, whether environmental, economic, social or otherwise, whereas Republicans give precedence to corporate freedom to act. Democrats created the Consumer Financial Protection Bureau; Republicans gutted it.

In one respect, McCarthy’s remark came at an especially opportune moment. The January 7 issue of The New Yorker includes an article about the philosophical thought of Elizabeth Anderson, chair of the philosophy department at the University of Michigan. (I’m reasonably sure that McCarthy doesn’t read The New Yorker, so I’m confident that the coincidence was inadvertent.) The article, entitled “The Philosopher Redefining Equality,” describes how Professor Anderson accounts for private, non-governmental limitations on personal freedom, and implicitly asserts that government’s purview includes private limitations on personal freedom just as much as it includes governmental limitations.

One of the more colorful examples of private limitations on personal freedom was the report that Amazon warehouse employees urinate in bottles because their employer doesn’t allow them bathroom breaks. Along similar lines was the report that lack of bathroom breaks has forced some poultry industry workers to wear diapers to work. Most Democrats would favor government workplace regulations sufficiently rigorous to allow employees to urinate in bathrooms, without the benefit of bottles or Pampers. I’m not sure many Republicans would.

Another example was Professor Anderson’s finding that 90 percent of female restaurant workers report having been sexually harassed. Democrats would opt for vigorous enforcement of laws against sex discrimination and sexual harassment. Republicans, not so much. The same goes for discrimination based on race, sexual orientation, and religion – except that Republicans do seem to be sensitive to discrimination against Christians.

Anderson rejects the conventional juxtaposition of freedom and government control: “We are told that our choice is between free markets and state control, when most adults live their working lives under a third thing entirely: private government” – our “private government” in this case being our employers, who exercise largely unchecked power not just over our work schedules and our compensation, but also over nearly every aspect of our working conditions, even our bathroom breaks. Other “private governments” include landlords, banks, credit card companies, tech companies, and all of the other private actors who have the power to dictate the terms of their relationships with individuals.

As a general matter, Democrats believe that government should regulate these “private governments” to curb their excesses – the limits on personal freedom that they impose on individuals. Republicans generally side with the “private governments,” arguing for maximizing corporate freedom, especially the freedom to maximize corporate profits and shareholder dividends.

She also rejects the conventional juxtaposition of freedom and equality, arguing instead that equality and freedom are interdependent – that equality is the only true basis for freedom:

“To be truly free, in Anderson’s assessment, members of a society had to be able to function as human beings (requiring food, shelter, medical care), to participate in production (education, fair-value pay, entrepreneurial opportunity), to execute their role as citizens (freedom to speak and to vote), and to move through civil society (parks, restaurants, workplaces, markets, and all the rest). Egalitarians should focus policy attention on areas where that order had broken down. Being homeless was an unfree condition by all counts; thus, it was incumbent on a free society to remedy that problem. A quadriplegic adult was blocked from civil society if buildings weren’t required to have ramps. Anderson’s democratic model shifted the remit of egalitarianism from the idea of equalizing wealth to the idea that people should be equally free, regardless of their differences.”

I was a political science major in college, with a particular interest in political philosophy, and I’d like to think I’ve kept up over the four decades since I graduated. But I’m pretty sure I never heard of Elizabeth Anderson before this week. I found her conception of freedom as founded on equality to be compelling, and to be especially apt right now, with Republican leaders like Kevin McCarthy insisting that we must choose between freedom and equality, and with Republicans siding against equality.

 

Speaker Pelosi

Forty-four men have served as president of the United States, but since Grover Cleveland served two non-consecutive terms, by convention he counts as both the 22nd and the 24th president. That makes Donald Trump the 45th president, although he’s only the 44th person to hold the office.

Applying that convention to the office of speaker of the United States House of Representatives, there have been 63 speakers of the House, although only 54 people have held the position. Today Nancy Pelosi became the seventh person to serve non-consecutive terms as speaker. Not since Sam Rayburn returned to the position in 1955 has a former speaker become speaker again.

Historically, House speakers have not served long tenures. Just 20 speakers have served for four years or more; Pelosi’s first service of four years and one day makes her the 18th longest-tenured speaker in history. If she serves just two more years, she’ll move up to seventh. Rayburn tops the list at 17 years and 53 days over three non-consecutive periods; Henry Clay comes in second at ten years and 196 days over two non-consecutive periods; and Tip O’Neill places third at nine years and 350 days. O’Neill’s entire service was consecutive, making his the longest continuous speakership in history.

Pelosi’s re-election today, ten years after her last election on January 6, 2009, gives her the longest gap between speakerships of the seven who served non-consecutive terms. The previous record was six years, shared by Republicans Joseph Martin (re-elected in 1953) and Thomas Reed (re-elected in 1895).

Other than Pelosi, House speakers have been white men. Pelosi was the first woman, and her re-election today makes her the second. She’s also the first two California representatives to serve as speaker. Only 23 states have been home to House speakers – eight from Massachusetts, the last being O’Neill, who retired at the beginning of 1987.

The speakership is a career-ending position, especially in modern times. Although some speakers have remained in the House after their parties lost their majorities, no ex-speaker has held any other governmental position since 1933, when John Garner became Franklin Roosevelt’s first vice president. The speaker is second in the line of presidential succession, after the vice president, but only one speaker has become president (James Polk), and only two have become vice president (Schuyler Colfax and Garner) – all by election, not by succession.

In the popular mind, at least, few House speakers have left much of a mark on history. Those who are well known are mostly known for things they did other than as speaker, like Clay, Colfax, Garner and Polk, plus James Blaine, who ran for president three times and served twice as secretary of state. An exception is Newt Gingrich, who was speaker for less than four years but did lasting damage to American politics with his bomb-throwing style of politics-as-warfare; his post-speaker activities have not been nearly as notable or important.

Pelosi’s first speakership is best known for the House’s passage of the Affordable Care Act, by a vote of 219-212. She also squelched efforts to impeach George W. Bush in 2007 and 2008, foreshadowing her current concern that Democrats not move too fast to impeach Donald Trump.

Pelosi’s second speakership has the potential to be much more historically important.

Pelosi’s job these next two years is two-fold. First, as head of the only elected Democratic power center in Washington, Pelosi must lay out a progressive message that voters will prefer to the Trumpian Republican alternative in 2020. Personally, I think that the reform agenda that Pelosi has forged is a perfect start. By pushing electoral reforms that have proved popular, like non-partisan redistricting to end gerrymandering and expanded voting rights, Democrats appeal to a broad range of voters who want a fairer, more transparent electoral system. Trump has constantly complained that the system is “rigged,” but he’s done nothing to unrig it, even as his party presses some pretty egregiously anti-democratic measures in state governments they control. Pelosi is in a position to show that Trump may talk the talk, but Democrats walk the walk.

Similarly, Pelosi’s anti-corruption agenda can make Democrats the party that will actually drain the swamp, not just yell about it at campaign rallies.

Second, Pelosi must vindicate the constitutional intention that the legislative branch of our federal government be independent of and equal to the executive branch, while avoiding the “investigation trap” that Republicans fell into while Bill Clinton was president – pursuing investigations too vindictively to sustain public support. Pelosi has made clear to incoming House committee chairs that she intends to revive the House investigative and oversight functions while reining in excesses. Successfully maintaining that balance over the next two years, in an atmosphere of unprecedented presidential hostility to the House, will require both discipline and a willingness to stand up to the more aggressive elements of the House Democratic caucus, not to mention the Democratic base.

I think Pelosi is up to the job. She has demonstrated leadership skills that must be recognized as remarkable, in maintaining the unity of a caucus that could easily become fractious. If she performs as I hope she will, the House will articulate a message of electoral reform, anti-corruption measures, and progressive economics, while performing meaningful oversight of the Trump administration’s worst abuses. Republicans, especially in the Senate, will have to choose between their loyalty to Trump and the popularity of House initiatives. And voters will be inspired in 2020 to send a Democrat to the White House and to send Donald Trump back to his tower.

 

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