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What Delaware’s 10th Senatorial District Means

An important election was held today in Delaware, the first in the country since Donald Trump took up part-time residency in the White House. The election, a special election to fill a vacancy in the tenth state senatorial district, was won by Democrat Stephanie Hansen, an environmental lawyer and former president of the New Castle County Council.

The state Senate seat in question was held by Bethany Hall-Long until January 17, when she became Delaware’s lieutenant governor. Hall-Long was first elected to the seat in 2008.

The tenth district is a suburban district in northwestern Delaware, extending from the south of Newark to the towns of Odessa and Middletown. The district leans distinctly Democratic, so it is not an especially big deal that the Democratic candidate won today’s election. What is a big deal is that Hansen beat her Republican opponent by a much larger margin than Hall-Long beat the same Republican in 2014.

In 2014, Hall-Long beat Republican John Marino, a realtor and retired police officer, by just over two percent of the votes cast: 6,230 to 5,963, or 51.1 percent to 48.9 percent. Returns as of 9:30 tonight, with all 16 precincts reporting, show Hansen beating Marino by 7,314 to 5,127, or 58.1 percent to 40.8 percent.

By itself, of course, a special election for a Delaware state Senate seat has no national importance. But today’s special election has two-fold national importance.

First, Delaware is one of only six states where Democrats control the governor’s mansion and both legislative houses. Had Marino won today’s election, the Delaware Senate would have slipped from Democratic to Republican control, leaving only five of fifty states fully controlled by Democrats. (Republicans fully control 25 states, their most since 1925.) Marino campaigned hard on the need for “balance” – the need to end Democratic one-party rule in Delaware – but voters in the tenth Senate district slammed the door on “balance.”

Second, today’s special election was the first electoral test of voter reaction to the Trump presidency. Both parties poured money into the race – total spending will certainly exceed $1 million, about 20 times what a Delaware state Senate race ordinarily costs. Spending for Hansen exceeded spending for Marino by three or four to one.

Voter turnout was not nearly as heavy as turnout in the tenth district for a presidential election, but still was substantial, especially given that there was nothing else on the ballot. Today 12,171 votes were cast, compared to 12,193 in the state Senate race in 2014 – which was not a special election but a state-wide general election in which one of the state’s U.S. senators was up for re-election. And Hansen’s margin of victory was considerable – almost eight times greater than Hall-Long’s margin in 2014. Given very similar turnout numbers and the same Republican candidate in both races, and given no obvious reason that Hansen would ordinarily out-poll Hall-Long by so much, the results suggest at least the possibility of a reaction against the Republican Party in Washington.

This is an off-year in American elections: in 2017, only two governors and three state legislative houses are up for election. But before we get to any of that, we’ll have at least four special elections for Congressional seats:

  • April 4, to fill the Congressional seat vacated by Xavier Becerra, who became California attorney general. The district has been held by Democrats since 1983.
  • April 11, to fill the seat vacated by Mike Pompeo when he became director of the CIA. This seat has been held by Republicans since 1995.
  • April 18, for the seat vacated by Tom Price to become secretary of health and human services. The seat has been Republican since 1979; it was former House Speaker Newt Gingrich’s seat.
  • June 20, to fill the vacancy created when John Mulvaney became OMB director. The seat has been Republican since 2011.
  • If Montana Republican Ryan Zinke is confirmed as secretary of the interior, a special election will have to be held for that seat, which is state-wide, and has been held by Republicans since 1997.

The importance of these special elections is unlikely to be their winners. Barring something extraordinary, the incumbent party is likely to hold each of those seats. The importance of the special elections is likely to be what they reveal about popular reaction to the Republican Party now headed by President Trump.

In the off-year of 2017, only two states are holding regular elections in November. In New Jersey, the governor and both houses of the legislature are up. Republican Governor Chris Christie is term-limited, and the seat is certain to be hard-fought with national-level attention. As of now, electoral new-comer Phil Murphy is leading the Democratic field, and Lieutenant Governor Kim Guadagno is leading the Republican field – although hyper-kinetic 1980s Saturday Night Live star Joe Piscopo is considering a Republican primary run.

It’s unlikely that Republicans will be able to take over either house of the New Jersey legislature, but again the importance of the legislative elections lies in what they tell us about popular reaction to Trump’s Republicans.

In Virginia, Democratic Governor Terry McAuliffe is term-limited, and the lower house of the legislature is also up. Several viable candidates are contesting the Democratic gubernatorial nomination, but on the Republican side a clear early lead has gone to former Republican National Committee Chair Ed Gillespie. All of the viable Democratic candidates are leading Gillespie in early polling. Interesting, at least, and potentially quite important, is the fact that every Democrat’s poll standings jumped after the November 2016 election – in the case of Lieutenant Governor Ralph Northam, for instance, he led in no poll taken before Trump won; he has led in three of four polls taken after Trump won.

With Republicans holding 66 of 100 seats in the Virginia House of Delegates, it’s beyond unlikely that the chamber will flip to Democrats in November. Again, the importance of the legislative vote will be in any indication it gives of national sentiment.

Sixteen of our largest 100 cities hold mayoral elections this November. Fourteen of the incumbents are Democrats; three (Albuquerque, Miami and San Bernardino) are Republicans, although of those only the mayor of San Bernardino is running for re-election.

There is plenty of evidence of popular discontent with President Trump in particular and with national Republicans in general. Republican senators and representatives are spending their Congressional recess getting yelled at by some very angry constituents. Anti-Trump marchers in Washington on the day after Trump was inaugurated far outnumbered pro-Trump inaugural attendees. Popular opposition to Trump’s executive order travel ban was impressive, probably unparalleled in intensity and focus since the Vietnam War protests. Trump’s approval ratings are lower than any previous president’s this early in his administration – a polling comparison that is possible back to Dwight Eisenhower’s early presidency. Trump’s approval ratings one month in are literally about half of Barack Obama’s approval ratings in February 2009.

The question for 2017 is whether these signs of discontent will translate to the voting booth. If in 2017 the Congressional special elections, the state-wide elections in New Jersey and Virginia, and the mayoral elections around the country show a movement away from Republicans, and away from Trump, then Republicans will be in serious trouble in 2018. On the other hand, if 2017 is a status quo election year – or worse, if 2017 shows movement toward Republicans – then Democrats are in for a very long, hard Trump tenure.


Flynn and the Logan Act

A few years after assisting the 13 American colonies in our Revolutionary War against the British, France entered into its own revolutionary period, ending its monarchy and establishing the First Republic in 1792. The Republic spent the first ten years of its 12-year life at war with the monarchies of Austria, Britain and Prussia, which were displeased at the spread of revolutionary ideas to Europe.

Although the United States proclaimed its neutrality in the war, the U.S. stopped paying its Revolutionary War debt to France, arguing that the debt was owed to the previous regime, not to the Republic. The Republic responded with an embargo on American trade, and French privateers began seizing American ships to be sold to pay the debt to France. American attempts to initiate negotiations were unsuccessful, ending when President John Adams informed Congress in April 1798 of the XYZ Affair, in which three French diplomats demanded bribes before negotiations could begin.

On Adams’s warning of the possibility of war, Congress created the Marine Corps and re-created the Navy, to protect American shipping. On July 7, 1798, Congress revoked the 1778 treaty of alliance with France. On July 9, Congress authorized the Navy to attack French warships in American waters.

A Pennsylvania state legislator, George Logan, who was a pacifist and a member of the Democratic-Republican opposition to Adams’s Federalists, had sailed for France on June 12, 1798. Acting as a private citizen, Logan met with French officials in an effort to head off the war that was almost certainly on its way. Logan informed them of the degree of anti-French feeling in America, and urged France to take steps to ease tensions.

History tells us that the Directory of the First Republic had already decided to back away from its hostile position toward the United States. But as it happened, within days after Logan’s last meeting with French officials, France lifted its embargo against trade with America and released American merchant seamen from detention.

Logan’s unofficial and unauthorized mission thus appeared to have been a big success, and he was greeted as a hero upon his return to the States, especially by Thomas Jefferson’s Democratic-Republicans, who were generally pro-French, in contrast to Adams’s generally pro-British Federalists.

Federalists were incensed at Logan’s reception. Even former President George Washington condemned Logan’s actions. The Adams administration urged Congress to “act to curb the temerity and impudence of individuals affecting to interfere” in disputes between the United States and other countries. The result was the Logan Act, which was quickly passed by Federalist majorities in both houses of Congress, and was signed into law by President Adams on January 30, 1799.

The full text of the Logan Act reads:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

The Act thus clearly prohibits entry into discussions with a foreign government or its representatives, with intent to influence that government’s conduct “in relation to any disputes or controversies with the United States.” And because the Act was motivated by Logan’s peace-making efforts, it is clear that nobility of intention does not remove private diplomacy from the scope of the Logan Act’s prohibition.

*          *          *

On December 29, 2016, President Barack Obama imposed sanctions against Russia in retaliation for Russian interference with the 2016 U.S. presidential elections. Russian officials, including the foreign minister, responded almost immediately by promising reciprocal sanctions. But the next day, Russian President Vladimir Putin announced that there would be no retaliation; instead, he said, “we will proceed from the policy pursued by the administration” of incoming President Donald Trump.

In all probability, the FBI was already investigating the propriety of contacts between the Russian government and various Trump transition officials. In any event, the FBI quickly began to look into Putin’s unexpected, and historically anomalous, response to American diplomatic sanctions. One of the things the FBI looked into was communications with the Russian ambassador to the U.S., Sergei Kislyak – specifically, recordings made from wiretaps on Kislyak’s phones.

What the FBI found was that Trump’s national security advisor-designate, Michael Flynn, had a series of conversations with Kislyak right after Obama announced the Russia sanctions on December 29, including one in which Flynn asked that Russia not retaliate. Judging by Putin’s non-retaliation statement the next day, it appears that Flynn’s mission was successful.

Of course, Russia passing up sanctions against the U.S. is good for us. Still, as George Logan established for posterity, nobility of intention does not decriminalize private, unauthorized diplomacy. One can argue that Flynn’s actions were legitimate because the Trump administration was then just 22 days from taking office, but the fact remains that we have just one administration at a time, and, until just about noon on January 20, the one we had was not Trump’s. Flynn ran a risk, however small, that he didn’t then know all that the Obama administration knew about Russian intentions, and that his apparently benign interference might in some unexpected way produce bad consequences for the country.

No one has ever been prosecuted under the Logan Act, for a variety of reasons, and I would guess it’s unlikely that Flynn will be prosecuted under the Logan Act. But Flynn may have much bigger problems.

On January 12, the Washington Post reported that Flynn might have discussed sanctions with Kislyak; the next day, the Trump transition team responded with a flat denial. That Sunday, January 15, Vice President Mike Pence was asked about the issue on Face the Nation; his response was that, based on his conversation with Flynn, the Post report was not true.

These denials implied that Flynn had lied to administration officials about his conversations with Kislyak – which I would expect to be a capital offense in any White House. Worse, the FBI already knew that the denial was false, from the Kislyak wiretap. And if the FBI knew, then the Russians knew – and Flynn was at least potentially compromised by vulnerability to pressure or even blackmail by a Russian threat to expose Flynn’s lie. This raised the stakes from the possibility of wrongdoing by Flynn to the possibility of risk to the American national security.

On the Obama administration’s last full day in office, January 19, Acting Attorney General Sally Yates discussed the situation with James Clapper, the Director of National Intelligence; CIA Director John Brennan; and FBI Director James Comey. Yates, Clapper and Brennan wanted to inform the incoming Trump administration of the content of the Flynn-Kislyak discussions, and the compromise of Flynn’s position. But Comey was concerned that disclosure could impair the FBI’s investigation, so the Trump administration was apparently not informed.

On January 20, Clapper and Brennan left office along with Obama; Comey stayed on as FBI director and Yates remained as acting attorney general pending Jeff Sessions’s confirmation by the Senate – or, as it happened, pending Yates’s firing by Trump when she instructed Department of Justice attorneys not to defend Trump’s travel ban. On January 22, the Post reported that Flynn was under investigation, and on January 23, at his first press briefing, White House Press Secretary Sean Spicer repeated the previous denials that Flynn had discussed sanctions with Kislyak.

Spicer’s continued denial prompted Yates to go back to Comey, who this time agreed that the White House should be informed, and Yates did inform the White House counsel. We don’t know exactly when, but it had to be sometime between January 23 and January 30, when Yates was fired.

On February 8, the Washington Post interviewed Flynn for an article to be published the next day. Flynn repeated his denial that he had discussed sanctions with the Russian ambassador. But before the article ran, Flynn called the Post back to modify his denial: he could not be completely sure that sanctions didn’t come up. On February 13, Flynn resigned.

The New York Times is now reporting that Flynn was interviewed by the FBI about his conversations with Kislyak, and that the interview occurred “in the first days of the Trump administration.” I’m betting that “the first days of the Trump administration” was before February 8, the date of Flynn’s last known denial that he had discussed sanctions with the ambassador. And I’m further betting that Flynn gave the FBI a denial, too.

Logan Act prosecutions may not exist, but prosecutions for lying to the FBI most certainly do exist, and the offense is a felony.

Congressional Republican leaders have promised to investigate, and Democrats are pressing hard the old Watergate cover-up question, “What did the President know and when did he know it?” The answer, if we ever get it, will be illuminating.

Press reports raised red flags: the report on January 12 that Flynn might have talked sanctions with Kislyak; the report on January 22 that Flynn was under investigation. Certainly by January 30, the day that Yates left office, the White House knew for a fact that the National Security Advisor had been compromised. Spicer claims now that Trump was told at the end of January that Flynn had lied to Pence. I would hope that Trump was told within hours, if not minutes of Yates informing the White House counsel. Yet Flynn was allowed to remain in office until February 13.

At an absolute minimum, that delay reflected crisis-management incompetence, and the possibility of incompetence is hardly dispelled by the unprecedented chaos of this administration’s first weeks. And consider this as a display of incompetence: a career military man, a retired general who had served for two years as the director of the Defense Intelligence Agency and who was 22 days from taking office as the national security advisor to the president of the United States, either was not sophisticated enough to know, or at least suspect, that the American intelligence community might monitor phone calls to the Russian ambassador, or was not cautious or risk-averse enough to find another way to converse with the ambassador. Either way, it says a lot about the competence of the vetting done for Trump appointees, or not done, that Flynn was able to spend 24 days in the national security advisor’s office.

There are those who suspect worse than incompetence – the accusation is afloat that Trump only acted on Flynn because it became clear that his lies were going to become public, and that absent publicity the compromised Flynn would have kept his office.

The other remaining question is whether anyone in the administration, including President Trump himself, knew about Flynn’s conversations with Kislyak when they happened – or worse, in the case of the President, whether he instructed Flynn to have those conversations. If not, of course, then we are left with this: the Washington Post knew more, earlier, about Flynn’s actions than the President-Elect and then President, and his entire transition team and administration.

 *          *          *

Just in case you were wondering whatever happened to George Logan: after leaving the Pennsylvania legislature, he spent six years in the Senate, where he tried unsuccessfully to get the Logan Act repealed. Then in 1810, three years after leaving the Senate, he traveled to Britain in a private effort to head off the War of 1812. As you may have read, this time he was not successful. Still, he was not prosecuted for violating the Act he had inspired.


The Ninth Circuit Slam Dunks Trump

In considering yesterday’s federal appeals court decision on President Donald Trump’s Executive Order 13769, it’s important to be clear about two things.

First, yesterday’s decision concerned the implementation of only five sub-sections of the executive order. The executive order consists of 11 sections and 27 sub-sections, most of which have not been challenged in any court, and many of which are indisputably valid and within the scope of presidential power.

Second, the appellate court’s decision was very, very preliminary. Politically, the decision may be the biggest judicial smack-down of any American president in his first three weeks in office; legally, the decision is nowhere close to the last word on the case.

There’s another important point that, although not especially relevant to yesterday’s decision, has been all but lost in the media coverage: Trump’s executive order deals entirely with legal entry into the United States. Even if fully and flawlessly implemented, the executive order would keep not so much as one undocumented alien from entering the country.

Now, let’s consider last night’s decision.

President Trump issued the executive order on Friday, January 27. The State of Washington sued the following Monday, claiming that portions of the executive order violate several federal constitutional and statutory provisions. At the same time, Washington asked the federal trial court in Seattle for a temporary restraining order blocking implementation of five sub-sections of the executive order. A temporary restraining order is an emergency measure – it is sought and issued on an almost summary basis, without the extended litigation that is necessary for a full exploration of the facts or a thorough debate over the applicable law.

In this case, the federal trial judge assigned was James Robart, a Washingtonian who went to law school at Georgetown, then spent 30 years in private practice, as a civil litigator, before President George Bush nominated him to the federal bench in 2003. The State of Minnesota joined Washington’s lawsuit on February 1, and the two states filed a revised application for a temporary restraining order. Last Friday, February 3, Judge Robart became one of five federal judges around the country to issue temporary restraining orders against implementation of parts of the Trump executive order.

Judge Robart’s order barred implementation of portions of five sub-sections of the executive order:

  • Section 3(c) suspends for 90 days the entry into the United States of aliens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
  • Section 5(a) suspends the entire Refugee Admissions Program for 120 days.
  • Section 5(b) directs that, after the end of the suspension of the Refugee Admissions Program, priority will be given to “refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
  • Section 5(c) suspends indefinitely entry of all Syrian refugees.
  • Section 5(e) states grounds for case-by-case waivers of the exclusion of refugees, including where admission of those refugees is in the national interest, and specifies that admission of a refugee is in the national interest “when the person is a religious minority in his country of nationality facing religious persecution.”

On Saturday, February 4, the Trump administration appealed to the United States Court of Appeals for the Ninth Circuit, and applied for an emergency stay of Judge Robart’s order. The next day, the Court of Appeals denied the request pending briefing. Briefing was done on Sunday and Monday, with oral argument conducted by conference call on Tuesday. Yesterday, in a 29-page decision, the three-judge appellate panel unanimously rejected President Trump’s request for a stay of Judge Robart’s order. Thus the five contested portions of the executive order remain unenforceable pending further litigation.

The three-judge panel consisted of appointees of presidents Jimmy Carter, George W. Bush and Barack Obama. The panel’s decision was issued “per curiam,” which is Latin for “by the court,” which means that authorship of the decision is attributed to the three judges as a whole, and not, as is usually the case, to any one of them. The per curiam form is often interpreted by court-watchers as a signal – one theory is that identifying the decision with the entire court is intended to make it a stronger statement than if it is written by one judge and merely agreed to by the other two. Whether the panel here meant to send such a signal will have to await a memoir yet to be written.

The first big issue facing the court was whether the states of Minnesota and Washington have legal standing to challenge the executive order. Standing generally requires that the plaintiff have a direct injury, not just a theoretical objection. The judges disposed of that question relatively easily: Minnesota and Washington each has a state university system that is legally an arm of the state itself; each university system has both present and incoming students and faculty who are covered by the executive order and whose travel is therefore restricted by the executive order; the universities’ missions of research and education will be impaired if travel by their students and faculty is restricted as provided by the executive order.

Next the court had to consider the Trump administration’s assertion that the executive order was “unreviewable” in court. The court pretty well did that claim in by describing it: “the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The court called that position unprecedented, and gave a rather long list of precedents that say exactly the opposite. While a president’s national security decisions are entitled to a deferential review, the court concluded, they are not altogether exempt from review.

The court then turned to the most important legal issue: whether the Trump administration is likely to succeed in its appeal of Judge Robart’s order. “Likelihood of success” is one of two essential legal elements to an emergency stay. Although Minnesota and Washington asserted a number of constitutional and statutory claims in their lawsuit, the court of appeals needed to consider only one: the Due Process Clause of the Fifth Amendment to the Constitution.

That clause says that the government may deprive no “person” of “life, liberty, or property without due process of law.” “Persons” does not mean just “citizens”; the Supreme Court has made clear that the Due Process Clause applies to anyone who is physically present within the United States, even if she is here illegally. No one who is here may be sent away without some form of opportunity to contest the sending away.

Furthermore, “persons” includes at least some aliens who have been in the United States, have left temporarily, and are trying to return. This certainly includes resident aliens – that is, green card holders. On this point, attorneys for the federal government argued that the resident alien point was moot, because White House counsel had said that Trump’s executive order didn’t apply to green card holders. The court responded that the government had made no showing that White House counsel had the authority to modify a presidential executive order, or that such a modification would be binding on all of the agencies and officials charged to implement the executive order. “The White House counsel is not the president,” the court concluded with a light touch of sarcasm, “and he is not known to be in the chain of command for any of the Executive Departments.”

And anyway, the court went on, “persons” definitely includes visa holders who are in the United States, who would like to travel abroad but can’t because the executive order would bar their return. “Persons” might also include refugees or other would-be immigrants with relationship to people or institutions in the U.S. that have “rights of [their] own to assert” – like the state universities in Minnesota and Washington, I suppose.

Next the court considered the question of irreparable harm – the second of the two essential elements to an emergency stay. The question here was whether the United States would suffer harm that could not be fixed later in the litigation if Judge Robart’s order remained in effect for now.

President Trump’s central argument is that his executive order must remain in effect to prevent terrorist attacks – not just in the long term, after the suspensions are over and “extreme vetting” has been implemented, but in the short term, during the suspension periods. The court made short work of that argument: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

By contrast, the court observed the obvious fact that people denied entry or re-entry into the United States would suffer considerable harm if the executive order went into effect pending further litigation.

The Trump administration’s last-ditch argument was that Judge Robart’s order was “overbroad,” meaning that it extended beyond the scope of people with constitutionally protected rights. The court’s response was that it is the president’s job, not the court’s, to rewrite the executive order. Given the extensive news coverage of the chaos the executive order caused before judges were called in, the court didn’t need to point out that if President Trump had competently vetted the executive order instead of rushing it out the door, it might not need to be rewritten to avoid the obvious constitutional pitfalls.

Today, in the euphoria of Trump’s decisive political defeat at the hands of the forces of compassion, constitutional order, and common sense, it’s important to remember that the fight is not over – not the fight over Muslim immigration, much less the much greater fight between Trump’s authoritarianism and the forces that won in court yesterday.

President Trump has several options, appeal to the Supreme Court being the one foremost on pundits’ minds. I personally think President Trump would be unwise to go to the Supreme Court at this stage – but then, I’ve made it clear that I regard the drafting and implementation of the executive order itself to have been unwise. Wisdom is not the watchword of this administration.

Commentators assume that the Supreme Court would divide evenly between the four liberals and the four conservatives. Since a tie vote leaves the lower court order in place, the Trump administration needs five votes to get an emergency stay. I also think it’s at least a 50-50 proposition that Justice Anthony Kennedy, Chief Justice John Roberts, or both, would side with the four liberals against an emergency stay.

Trump could try to time his appeal to the Court so that his pending nominee, Neil Gorsuch, is seated in time to vote on the request for a stay. But I don’t think that’s going to happen. Gorsuch’s nomination is likely to be filibustered, and although I think Republicans will eventually change the filibuster rules to get Gorsuch confirmed, I don’t think they’re eager to do it, and therefore they will try to fight through a filibuster before exercising the nuclear option.

Legally, Trump has plenty of time to go to the Supreme Court. But practically, his time to ask the Court for an emergency stay is probably days, maybe a week. That’s because there is a very well established doctrine holding in substance that a party who asks a court to treat a situation as an emergency must himself act like the situation is an emergency. You can’t sit around thinking about it for a month or two then show up in court asking the court to drop everything and issue an emergency order right now.

Next, President Trump could do what he should have done in the first place – vet the executive order with the departments of State, Defense and Homeland Security, and most importantly with the Attorney General, and listen to their advice. It should not be all that difficult to come up with an executive order that satisfies Trump’s political base with an anti-immigrant gesture, without taking on a host of legal questions about the order’s validity.

And let’s be clear: the executive order was an anti-immigrant move, not a national security move, and not a move to “secure our borders.” The executive order was directed solely at legal immigrants – those with refugee entry approvals or visas. These are the folks who did what Trump fans say illegal immigrants should have done: get in line and wait your turn.

One of the unchallenged sections of the order reduces the American commitment to take in up to 100,000 refugees annually to no more than 50,000. Given that the executive order was supposed to suspend all refugee admissions until “extreme vetting” is in place, the reduction in the refugee cap is not an anti-terrorist measure, but an anti-refugee measure – and, of course, the idea was that Christian minorities in Muslim countries would have preference for that smaller number of refugee spots. (I’m quite sure that Trump does not have in mind admitting Sunnis facing religious persecution in majority Shiite Iraq or Iran, or Shiites facing religious persecution in majority Sunni Pakistan or Saudi Arabia. And one of the more irrational aspects of the executive order is its stipulation that priority be given to religious persecution claims asserted by members of religious minorities. In Syria, where the Shiite minority rules brutally over its Sunni majority, or in Bahrain, where the Sunni minority suppresses its Shiite majority, the victims are left out in the cold because they are in the numerical majority, subject to dictatorships of minorities.)

Revising the executive order would be the best move, if the object were to implement actual policy changes. The problem is that revising the executive order would look like conceding or at least compromising, not winning outright – and the core element of Trump’s brand is his claim to be a “winner.” And in any event I question whether the primary objective is policy change, as opposed to signaling to Trump’s base his continuing hostility to people who are not white and Christian.

Finally, Trump could engage in the long-term litigation of the merits of the states’ lawsuits, and the other lawsuits that have been filed. The Court of Appeals noted several times that the administration had submitted no evidence on various important points. The administration could go about developing such evidence – the most obvious being to submit evidence of terrorist attacks, or intention to commit terrorist attacks, by nationals of the seven countries. Most compelling, of course, would be a terrorist attack, or even just a serious crime, committed by someone admitted to the U.S. because of Judge Robart’s order.

Opponents of Trump’s executive order, and of his nativist authoritarianism generally, have to be realistic and understand that yesterday’s decision is just one battle in a very long fight, and a lot of these battles will be lost. Trump will not end immigration, legal or illegal, but he will reduce both. He won’t get his entire wall – the price tag has gone up, again, this time to $21 billion – but he will get additional border patrol agents, increased detention at the borders and increased deportation from within the borders. He won’t get his entire executive order, but he will get parts of it – reducing refugee immigration by lowering the annual cap and decreasing visa-based entries by drawing out the vetting of visa applicants. Trump will likely end Obama’s leniency programs, DAPA and DACA (Deferred Action for Parents of Americans and Deferred Action for Childhood Arrivals).

Still, yesterday was a great day. No matter the long-term result of the litigation, yesterday’s appellate decision was a sobering reminder that we elect presidents, not kings, and that even if the Republicans who control Congress are willing to forfeit the co-equal status of their branch of government, the judicial branch is not willing to forfeit its co-equal status. Yesterday’s decision tells the majority of Americans, who oppose Trump, that resistance is not futile.


Monday Evening Massacre

At 5:30 a.m. on Sunday, October 21, 1973, as it did every Sunday morning, my blue plastic wind-up alarm clock went off, and I dutifully got out of bed, got dressed, and trudged six blocks to the corner of State Street and Buchanan Avenue to unbundle 80-some copies of the Lancaster Sunday News for delivery on my paper route. I was a news junkie even at 16 years old, and I always gave the headlines a quick scan before starting off on my paper route. The page one headline that morning was about the Saturday Night Massacre – the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus in protest of President Richard Nixon’s order to fire Watergate Special Prosecutor Archibald Cox.

Even with the limited perspective of a teenager, I immediately knew that this was historic. I also knew that the import of the news was that Nixon’s days as president were, and ought to be, numbered. Two hundred and ninety-two days later, on August 9, 1974, Nixon became the only president in our history to resign the office.

Yesterday, Acting Attorney General Sally Yates, a transition holdover from Barack Obama’s administration, issued a letter to Justice Department attorneys directing them that they were not to  defend in court President Donald Trump’s executive order suspending all refugee immigration and all visa-based immigration from seven specified Muslim-majority countries, “unless and until I become convinced that it is appropriate to do so.”

Attorney General Yates’s letter was deliberately ambiguous about whether her position was that Trump’s executive order was illegal or bad policy, or both.

President Trump responded, entirely predictably, by firing Attorney General Yates. Literally within minutes, reporters and commentators were comparing the firing to Nixon’s Saturday Night Massacre. The comparison is mostly inapt, for several reasons.

First, Attorney General Yates, unlike Special Prosecutor Cox, holds her position at the pleasure of the president, and can legally be fired for any reason or no reason at all. The regulations that applied to special prosecutors limited Nixon to firing Cox only for wrongdoing, which a federal court later found to have been lacking – Cox was fired for doing his job, which was to seek out evidence of crimes committed within his jurisdiction.

Second, Cox was investigating a corrupt and criminal enterprise that was ultimately shown to have been directed from the Oval Office, a broad effort to discredit Democratic presidential candidates in order to ensure Nixon’s re-election in 1972. Nixon’s decision to dismiss Cox was prompted by Cox’s refusal to drop his effort to get access to the Oval Office tape recordings that would reveal the degree of President Nixon’s involvement in the Watergate burglary and subsequent cover-up.

My opinion is that Trump’s executive order violates constitutional and federal statutory guarantees, that it is incomprehensibly cruel and inhumane, and that it diminishes not only American stature in the world but also American security at home. But I don’t think there is a fair case to be made that Trump’s suspension of most Muslim immigration is comparable to Nixon’s nearly treasonous conspiracy to steal the 1972 presidential election. And in any event, Trump’s firing of Yates does not mean that the executive order will stand – federal judges will continue to pass on its legality, as they did in the last few days. On the other hand, had Nixon been successful in abolishing Cox’s office, the effort to bring to light the Oval Office tape recordings that ultimately brought down the Nixon presidency would probably have ended.

Third, there is plenty of room for debate whether Yates’s actions were ideal. Reports this morning indicate that she had not been consulted about the executive order, although she was the acting attorney general. Instead, the Trump White House had gone around her to consult her staff, the Office of Legal Counsel, which approved the executive order as to form and legality. Yates’s letter indicates that she disagrees with the Legal Counsel determination. Yates considered not just the words of the executive order, but the intentions behind it, which she assessed by public statements made by Trump and others, describing the executive order as the implementation of Trump’s campaign promise to impose a temporary ban on Muslims entering the United States.

To the extent that Attorney General Yates’s letter was based on an assessment of the executive order’s legality, she was in good company. Over the weekend, five federal judges found, in the words of Judge Anne Donnelly, that there is a “strong likelihood” that the executive order is unconstitutional. But it appears that Yates did not discuss her legal conclusions with the White House before sending her directive to Justice Department lawyers, as I think a lawyer should do. Her letter left room for a change of mind, providing for the possibility that she could be convinced that defense of the executive order is “appropriate.” Given even that much doubt, a lawyer owes her client an opportunity to make his case.

To the extent that Yates’s letter may have been based on an assessment that the executive order’s propriety was not “wise or just” as a matter of policy, Yates’s letter was certainly improper. A lawyer’s job is to advocate her client’s position unless that position is legally indefensible; if a lawyer finds herself morally or otherwise unable to advocate a legally defensible position, her duty is to resign.

Therefore, whereas Archibald Cox was fired solely and explicitly for correctly and appropriately doing his job, the correctness and appropriateness of Sally Yates’s performance of her job is considerably less clear.

But I said that the parallel to the Saturday Night Massacre was only “mostly inapt.” The true impact of Nixon’s firings of Richardson, Ruckelshaus and Cox was in the reaction of tens of millions of Americans, like my reaction when I read that Sunday morning headline. Our reaction was outrage. Congressional offices were flooded with mail and telegrams (it was 1973; there were no e-mails, let alone tweets) from voters demanding Nixon’s impeachment. For the first time in the 16 months since the Watergate break-in, a plurality of Americans favored impeachment.

I mention impeachment not to suggest that Trump will or even should be impeached, but to indicate the depth of anger Nixon’s actions provoked. The question is whether Trump’s action will provoke similar anger now. The inexplicable cruelty of his executive order as applied to many of the specific cases that have made news generated tremendous anger. Whether voters care that Trump fired an Obama holdover who probably only had a few days left to serve is a matter that remains to be seen.

Unfortunately, I think the media’s focus on the Saturday Night Massacre comparison obscures a much more important problem revealed by the executive order and its aftermath. To me, the incident illustrates how completely unprepared Trump and his team are to govern the country. It is a study in arrogance and incompetence.

Apparently, the Trump White House drafted the executive order in-house, with little to no input from the bureaucracies that would be charged with implementing the order and managing its effects. Even just from a narrow legal point of view, immigration is a complicated subject involving international law, constitutional law, federal law, and agency regulations. There are scores of types of immigrants, from green card holders to tourists; there are student visas, employment visas, highly specialized visas like those available to Iraqis who served as translators for the American military, and so on.

Immigration law is enforced not just by a half-dozen agencies within the Department of Homeland Security, which posts employees in every international airport in America as well as in hosts of places around the world, but also in effect by every airline that flies passengers into the United States. Immigration law is interpreted in every American embassy and consulate around the world.

No competent manager expects to be able to issue a complex directive to bureaucracies that vast and dispersed, without so much as a minute of preparation or a word of guidance, and have that directive implemented effectively and efficiently.

Nor does a competent manager issue a complex directive without carefully vetting it for unexpected consequences. At the very least, a competent manager wants to make sure that the action taken doesn’t blow up in the manager’s face. The Nixon White House was confident they could ride out the storm provoked by the Saturday Night Massacre; they could hardly have been more wrong.

Trump’s executive order blew up in Trump’s face. Iraqi interpreters who put their lives on the line to assist American troops, who then applied for visas and successfully completed the arduous, years-long vetting process, who obtained lawful visas and then boarded planes to this country without any further legal impediment to their immigration, were arrested upon arrival, denied access to their attorneys and families, and summarily scheduled for flights back home.

Legal residents of the United States who happened to be returning home at the time the executive order was signed were given similar treatment. This included not only students traveling abroad for research and employees traveling to visit families, but even green card holders who are legally entitled to permanent United States residence.

Americans can be callous about people in abstract categories like “Muslims” or “immigrants,” but Americans are strikingly compassionate when it comes to identifiable individuals and their personal stories. The effects of the executive order on identifiable individuals as it went into effect prompted compassion, and provoked outrage – and a spontaneous uprising of protests around the country unmatched by anything I can remember in American history.

The impact on military translators, for example, has even some Republicans in Washington questioning Trump’s executive order.

Almost immediately the White House was furiously backpedalling. No, the executive order doesn’t apply to green card holders after all. No, the executive order isn’t an absolute ban, because it provides for “waivers” – at least 81 of which had been issued before the first court-issued stay of deportations under the executive order. And no, the executive order isn’t a “Muslim ban,” it’s all about national safety and security.

The premise of the executive order is that vetting of refugees in general, and of immigrants born in the seven specified Muslim countries, is inadequate to separate those who do and don’t intend to come here to do us violence. One can only wonder what additional vetting was done in the hours during which the 81 “waived” immigrants had been detained. What did the administration learn by asking them a few questions? Are we to believe that the “extreme vetting” we’ve been promised will consist of nothing more than an additional interview with the applicant?

The executive order applied to non-refugee immigrants only if they were born in seven specified countries: Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen. It has widely been pointed out that no one born in any of those countries has successfully committed a terrorist act inside of the United States back to, and including, the September 11 attacks.

Most of the 9/11 hijackers were from Saudi Arabia, which wasn’t included in the executive order’s immigration ban. The Boston Marathon attack was committed by two men born in Chechnya. The Orlando nightclub attack was carried out by an American-born son of Afghan immigrants. The Times Square bomb was planted by a man born in Pakistan. The Northern Virginia attacks were committed by a man born in Ethiopia. The San Bernardino shootings were carried out by an American-born man of Pakistani descent and a Pakistani-born woman. The 2016 New York and New Jersey bombings were done by a man born in Pakistan.

There are exceptions. The 2010 car bomb plot in Portland, Oregon, was hatched by a man born in Somalia, who grew up in the United States and was a naturalized citizen. In 2011, the FBI foiled an Iranian-directed plot to bomb the Saudi and Israeli embassies in Washington. The 2016 mass stabbing at Ohio State University was done by a Somali refugee.

By far, more terrorist attacks have been committed on American soil by American citizens of European descent than by immigrants from the seven countries banned by Trump’s executive order. And by far, more terrorist attacks have been committed on American soil by people born in Muslim-majority countries not included on Trump’s list than by people born in countries included on the list.

Domestically, Trump’s executive order has galvanized popular opposition and organization. One illustrative example: the ACLU raised more money last weekend than it ordinarily raises in a calendar year. Democrats on Capitol Hill may finally find their backbones.

Some Republican officials and leaders have voiced public concern about the executive order, if not quite outright opposition. Privately, I suspect that Republicans have expressed stronger views.

American corporations are concerned that some of their foreign-born employees may be at risk, impairing American business interests. American universities are concerned that duly enrolled students who hold lawful visas will not be able to return from winter breaks, impairing our influence on rising generations in some of the world’s most troubled countries. American scientists are concerned that Trump’s executive order will limit international scientific cooperation, impairing the advancement of human knowledge.

Internationally, Trump’s executive order has seriously harmed American standing. Western leaders have decried the executive order – although, ironically, Trump may have inadvertently given mainstream European politicians the cudgel they need to beat back their own right-wing nativist challengers. While Trump was trying to cozy up to Great Britain’s Prime Minister Theresa May, she diplomatically but clearly and firmly disavowed Trump’s anti-refugee position. German Chancellor Angela Merkel, a critical ally for any American president, denounced the executive order.

Iran immediately announced reciprocal restrictions on Americans, so that, for instance, Iranian-Americans will not be permitted to visit their Iranian families as long as Iran is on Trump’s ban list. Maybe related and maybe not, today Iran launched a ballistic test missile, a metaphorical if not literal shot across Trump’s bow.

Iraq also announced reciprocal restrictions on Americans coming to Iraq. Trump’s ban on Iraqi visitors applies, at least unless waivers are given, not only to Iraqi terrorists but also to Iraqi terror fighters – for instance, Iraqi air force recruits who train in the United States. Iraq’s reciprocal ban similarly applies to American personnel coming to Iraq to help in the fight against ISIS.

Consultation with the State Department would have anticipated of all of these international issues – just as consultation with Homeland Security officials would have uncovered enforcement issues, and consultation with the acting attorney general would have uncovered legal issues.

But Donald Trump doesn’t do consultation. No one who is convinced that he is smarter than everyone else does consultation. No one who believes that “I alone can fix it” does consultation. What purpose after all does consultation serve if no one but the consulter is smart enough to tie his own shoes?

Maybe consultation will improve once Trump has cabinet members of his own selection to consult with. But I suspect that this is just the first of a series of screw-ups. Basing his entire professional experience on an enterprise that was subject to the control-by-fiat of a single man, Trump has no concept of the complexity of federal government, let alone international affairs. Recipe for disaster: combine Trump’s impulsive narcissism with his governmental inexperience.

The executive order was a gesture to Trump’s base voters. It didn’t need to make operational sense to serve its political purpose, and therefore none of the problems the executive order created will erode Trump’s base. But on the other hand, the executive order didn’t need to have any immediate effect to serve its political purpose, either. Much better advised would have been an executive order suspending issuance of new visas to people from the seven named countries, and issuance of new refugee approvals, while continuing to allow those with visas, green cards and other lawful approvals to enter.

This more circumspect approach would have accepted the vetting of those whose vetting had already been completed. Absent the proposed deportation of actual arrivals in the United States, it is far from clear that anyone would have legal standing to challenge that more circumspect executive order in court; certainly there would not be five federal court orders holding that the proposed deportations of those arrivals were probably unconstitutional. Absent the proposed deportation of actual arrivals in the United States, the national eruption of protest would almost certainly not have occurred, the galvanization of opposition, the contributions to the ACLU, would have been avoided. The international reaction would likely have been more muted.

Similarly, a better written executive order would have given much greater prominence to the waiver provision. The waiver provision could have been presented as an additional step in the vetting process – so, for instance, Iraq’s inclusion on the list of seven suspended countries could have been presented in a way that made clear that the suspension was merely a matter of form for our military ally in the fight against ISIS.

It also might have been nice to let Iraqis know the executive order was coming. Reports have indicated that the Iraqi government learned of the executive order from the news media. Our allies around the world must be wondering just how much an alliance with the United States is worth during a Trump presidency.

Finally, the executive order should have omitted provision for future prioritization of claims of religious persecution by members of religious minorities. The provision was politically unnecessary, since the base would have been satisfied with the suspension of refugee immigration and the suspension of immigration from the seven Muslim-majority countries. And the provision was operationally unnecessary, since Trump only needed to ask his incoming secretaries for legislative or regulatory proposals to implement a preference for religious persecution claimants. But the provision was legally counterproductive, because it highlighted the anti-Muslim purpose of the executive order. And the provision was diplomatically counterproductive, because it offended our critically important Muslim allies, not to mention the fair-minded population of the entire world.

The executive order was incompetently written and incompetently implemented. While it shores up Trump’s anti-Muslim base, it seriously harms Trump’s credibility among everyone else. It may be that the Trump White House thinks it needs no credibility among everyone else, but a truly shrewd negotiator or a truly capable strategist never gives anything away unnecessarily. In a complex world, there will surely come a time that Trump needs cooperation from people, corporations, and countries that this executive order hurt, either materially or morally. It is less likely this week than it was last week that such cooperation will be offered when Trump needs it.

The episode was, in the words of Senators John McCain and Lindsey Graham, a “self-inflicted wound.” Given the underlying features of Donald Trump personally and of his administration, it is unlikely that this will be Trump’s last self-inflicted wound.



My Case Against Cuba Sanctions

Cuba’s amateur boxing program is legendary. With a population smaller than Ohio’s, Cuba since 1960 has won 73 men’s Olympic boxing medals to 61 for the United States, which ranks second over that time. The only three-time gold medalists in Olympic boxing history are Cuban – the great heavyweights Teofilo Stevenson and Felix Savon. Since the Cuban Revolution, Cuba has won Olympic gold 37 times – compared to 27 for the United States, which is surely one of the world’s most pugilistic countries.

In Havana for vacation last week, in between restored colonial era churches in Old Havana, my spouse and I came across a boxing gym. I remembered reading that tourists were welcome to stop in at these gyms, so we did. Sure enough, off in one corner was a tour guide lecturing his charges.

But my spouse and I didn’t want the tourist experience. We found someone who looked like he worked there and we struck up a conversation. My spouse asked who was the gym’s most famous boxer. Instead of answering, our new friend called one of the boxers over, and next thing I know we’re deep in conversation with an aspiring member of the Cuban team for the 2019 Pan American games in Lima.

After awhile, my spouse, Guillermo, who is one of the larger-hearted members of the human species, told the boxer – rather peremptorily, I thought – to come with him. Guillermo stepped into a side room, out of view of the gym employees and other boxers, and gave the boxer a Cuban currency note worth ten dollars.

I knew Guillermo meant well, but I was certain the boxer would refuse. Surely, I thought, the Cuban government sees to the needs of its top amateur boxers. Surely a Cuban boxer who competes internationally does not need ten bucks from a tourist. I thought he would be insulted.

I couldn’t have been more wrong. Tears came to the boxer’s eyes. He choked up and thanked Guillermo profusely, his right hand over his heart in a classic Cuban gesture of gratitude. He poured out a torrent of words, of which I understood only “mi casa es tu casa” – a phrase meant much more literally in Latin America than in the United States.

We were told that a good tradesman in Cuba, like a plumber or an electrician, makes about $10 a month. Education and health care are universal and free, and many essential goods and services are subsidized. Still, a cheap pair of shoes costs several weeks’ wages. A date night of dinner out and a couple of beers costs a month’s pay. Cars are family heirlooms, those iconic 1950s Ford Fairlanes and Chevy BelAirs passed down now three generations, and a gallon of gas costs almost two weeks’ salary.

Since 2011, Raul Castro has allowed closely regulated private businesses. So rather than stay in a state-run resort hotel for a couple hundred dollars a night, we stayed for $40 a night in a privately owned place – a partly restored building in Old Havana that serves as a sort of a combination bed-and-breakfast, theater, dance class studio, and tour group staging area.

That bed-and-breakfast sustains eight jobs, six full-time and two part-time, not counting the construction jobs that go into the continuing restoration of the building. Although our tipping was extravagant, measured by Cuban tipping customs, in fact it was just a few dollars here and there. The couple who run the bed-and-breakfast we stayed in told us that the tip we left them would fix their plumbing at home.

Guillermo and I are accustomed to the outsized welcome that American tourists enjoy around the world, even in countries where our government is regarded with suspicion or hostility. Even so, our welcome in Cuba stood out. American tourists not traveling in packs, as part of cruise ship excursions or educational and cultural tour groups, are still rare.

It wasn’t just our tourist dollars that were valued. Ordinary Cubans were eager to engage us in conversation. They were surprisingly free with their opinions, including political opinions. Many described their own government with sardonic, eye-rolling cynicism. Opinions of Donald Trump were unanimously strong and negative, although the reasoning varied – some think he is crazy, some think he is corrupt and power-hungry, some think he is stupid. We talked to no one who thinks Trump’s presidency will be good for Cubans.

Two years ago, after Barack Obama restored diplomatic relations with Cuba, I responded to conservative criticism with the assertion that advocacy of democracy and opposition to dictatorship in Cuba requires respect for the opinions of the Cuban people – and Cubans were thrilled by Obama’s move. Similarly now, Cubans are thrilled that Americans are now able to travel to Cuba more freely. If we don’t truly believe that Cubans know what is in their own best interests, then why after all do we advocate democratic self-government in Cuba?

It has always bothered me that some of the most fervent proponents of the American economic sanctions against Cuba were Cuban-Americans who, pursuant to exemptions written right into the sanctions provisions, are entitled to send money to their families in Cuba, and to visit Cuba freely. The argument for sanctions has been that American trade with Cuba would only help the regime; trade will only keep Raul Castro in power. It has never been clear to me why my tourist dollar benefits Castro while a Cuban-American’s remittance dollar or travel dollar does not.

Al contrario, queridos amigos. My tourist dollar sustains jobs, buys shoes, renovates buildings and repairs plumbing. My tourist dollar brings tears to a world-class boxer’s eyes. My tourist dollar improves Cuban lives.

American economic sanctions against Cuba must end.


I Have a Dream

A great speech invokes its predecessors. The structure of Abraham Lincoln’s speech at Gettysburg paralleled that of the oration delivered by Pericles at a funeral for fallen Athenian soldiers. Lincoln’s measure of America’s age (“four score and seven years”) recalled the measure of a man’s lifespan in the King James version of Psalm 90 (“three score years and ten”). Lincoln’s “government of the people, by the people, for the people” echoed several early American antecedents, including Theodore Parker, an abolitionist minister (“Democracy is direct self-government, over all the people, for all the people, by all the people”) who also observed that “the arc of the moral universe is long, but it bends toward justice.”

Martin Luther King began his “I Have a Dream” speech at the March on Washington on August 23, 1963, with an invocation of Lincoln’s famous measure of time: Lincoln signed the Emancipation Proclamation, King said, “five score years ago.”

King also invoked the Declaration of Independence; like Lincoln, he invoked the country’s founding to call for a recommitment to our founding principles.

Lincoln’s invocation of the country’s founding was to laud the Union for its dedication to the principle that all men are created equal. We were engaged in a “great civil war,” Lincoln said, to determine whether a nation dedicated to that principle “can long endure.” Lincoln asked his audience to resolve “that government of the people, by the people, for the people, shall not perish from the earth.”

Lincoln made no explicit criticism of the country’s realization of its founding ideal. He did call for a “new birth of freedom,” which might have been an implicit criticism of the country’s first birth of freedom. The founders clearly intended the proposition that “all men are created equal” not to include “all men.” Lincoln’s intentions on that subject remained ambiguous, at best.

By contrast, King practically accused the Founding Fathers of fraud. Referring to the “magnificent words” of the Declaration of Independence that “all men” enjoy “the unalienable rights of life, liberty and the pursuit of happiness,” King called the promise of those words a “bad check,” a promissory note on which the country had defaulted.

King let Lincoln off only slightly easier. One hundred years after the Emancipation Proclamation promised freedom for African-American slaves, “the Negro still is not free.”

King’s speech as written was a call to arms. King described “the life of the Negro” as “still badly crippled by the manacles of segregation and the chains of discrimination.” He said that “the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity.” He listed the grievances as responses to his own rhetorical question, “when will you be satisfied?”:

We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality.

We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities.

We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one.

We can never be satisfied as long as our children are stripped of their adulthood and robbed of their dignity by signs stating “For Whites Only.”

We cannot be satisfied as long as the Negro in Mississippi cannot vote and the Negro in New York believes he has nothing for which to vote.

King referred without detail to the “sweltering summer of the Negro’s legitimate discontent.” The sweltering summer of 1963 was this: in Birmingham, Bull Connor’s police officers turned fire hoses and police dogs on civil rights protestors, jailing more than 3,000 African-Americans, some as young as six years old; George Wallace stood in a doorway to block the enrollment of African-American students at the University of Alabama; civil rights activist Medgar Evers was murdered by a segregationist in Jackson.

King warned white America that time was of the essence: “There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright days of justice emerge.”

The threat in those words was intentional, and surely the force of the threat was amplified by the fact that they were spoken by America’s greatest advocate of non-violent protest. King promised that “1963 is not an end but a beginning” – conjuring even greater unrest to come. American “tranquility” will not be relieved of the “whirlwinds of revolt” until the promise racial justice is redeemed. He called gradualism a “tranquilizing drug.” He said that taking time for “cooling off” was a “luxury.” King emphasized “the fierce urgency of now.”

King’s written remarks concluded with a call to action. But the call was bland, even anodyne:

Continue to work with the faith that unearned suffering is redemptive. Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our Northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

Evidently, King sensed that his prepared speech had not risen to the occasion. The great contralto gospel singer Mahalia Jackson must have thought so too. Jackson had performed “I Been ‘Buked and I Been Scorned” before King’s speech, and she remained on the stage. She was active in the civil rights movement, and had heard King speak a number of times. In particular, Jackson had heard King speak about his dream for America.

King first spoke about the American dream in 1960, before the NAACP, contrasting the American dream and the African-American reality. He developed the theme in successive speeches, first giving a recognizable predecessor of the “I Have a Dream” speech in November 1962, at the Booker T. Washington High School, in Rocky Mount, North Carolina. Most recently, he had delivered a variation of the theme on June 23, 1963, in Detroit.

On the day of the March on Washington, as King was winding up a speech that would probably have been as unremarkable as the other 17 speeches given that day, Mahalia Jackson called out, “Tell them about the dream, Martin.” And King heard her.

The skilled and practiced orator that he was, King improvised memorably on the theme he had developed over the previous three years. The dream was of a just and good America, a country that lived up to its creed: that all men are created equal. It was a dream of aspiration, of ideals and perfection, of unity and understanding, where people will “not be judged by the color of their skin but by the content of their character,” where “little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”

Separately, neither the original speech nor the improvised addendum would have gone down in history. The prepared text was a critique of the hypocrisy of the economic and legal treatment of African-Americans by a country that professed belief in equality. King articulated the critique especially well, but the concept itself was hardly original.

On the other hand, standing by itself, the “I Have a Dream” improvisation would have seemed surreal – too optimistic, too idealistic, to be realistic. Without a hard-headed acknowledgement of the reality of 1963, the dream would have been Pollyannaish, sentimental and certainly not a serious plan of action.

But the two halves together are a brilliant and compelling juxtaposition of our reality and our ideals; of how flawed we are but how good we want to be. It is universally inspirational, both stateless and timeless. People from any time and any place, people who know nothing of the hardships of African-Americans in 1963, can understand those hardships as metaphor for the hardships of other people in their own time and their place. Every people holds ideals of freedom and justice. The hypocrisy is perhaps sharper here, where our founding documents were unusually nobly and ably written, and where their ideals have been unusually well inculcated into our cultural sense of ourself, but the difference with other countries, other societies, other peoples, is a matter of degree, not of kind.

The speech is forever known as the “I Have a Dream” speech, although the written version of the speech nowhere used those words. As delivered, the speech stands with the Gettysburg Address as one of the two pillars of our oratorical history, and therefore as a pillar of our culture.

King himself is also a pillar of our culture and our history. Time magazine recognized King as its man of the year for 1963, and King won the Nobel Peace Prize in 1964. In 1983, King’s birthday was made a federal holiday, making him one of only three individuals, along with Christopher Columbus and George Washington, to be so honored.


Parsing Trump’s Streep Tweets

Among movie critics, Meryl Streep is widely regarded as the best actress of her generation, and it’s hard to argue the point. She has more Oscar nominations (19) and more Golden Globe nominations (30) than anyone else in history; she is the only living actress to have won three Oscars and one of only six people ever to have done so; her eight Golden Globe awards is more than any other person in history. The Wikipedia entry for “List of awards and nominations for Meryl Streep” has 98 sections – not 98 awards; 98 categories of awards.

Streep went to public school in New Jersey, got a bachelor’s degree with honors from Vassar in 1971 and a master’s degree in fine arts from Yale in 1975. She moved to New York that year and began her career in theater, landing six roles on stage her first year, including several produced by the New York theater legend Joseph Papp, appearing with luminaries like John Lithgow, Raul Julia and Sam Waterston. And she only went up from there.

Streep landed her first film role alongside Jane Fonda in the 1977 film, Julia. In her second film, in 1978, The Deer Hunter – the first time I saw Streep perform – she played Robert deNiro’s girlfriend and won her first Oscar nomination, for best supporting actress. Her first Oscar win was for best actress in the 1982 movie Sophie’s Choice.

Streep has proved to be remarkably durable. In an industry that is notoriously hard on middle-aged women, and even harder on older women, Streep continues to star. She has performed in 67 movies, including at least one in each year of this decade.

Last night Streep was presented the Golden Globes Cecil B. DeMille award, given annually by the Hollywood Foreign Press Association for “outstanding contributions to the world of entertainment.” Only 64 human beings have won this award, starting with the great director after whom the award is named, and including such names as Lucille Ball, Bette Davis, Walt Disney, Clint Eastwood, Judy Garland, Alfred Hitchcock, Bob Hope, Sophia Loren, Laurence Olivier and John Wayne.

Streep’s acceptance speech ran nine paragraphs. She began by observing that the name of the awarding organization, the Hollywood Foreign Press Association, represents “the most vilified segments in American society right now. Think about it: Hollywood, foreigners and the press.” She then observed that no one in Hollywood is actually from Hollywood, and she illustrated with the night’s honorees the often humble and sometimes foreign origins of Hollywood stars:

But who are we, and what is Hollywood anyway? It’s just a bunch of people from other places. I was born and raised and educated in the public schools of New Jersey. Viola [Davis] was born in a sharecropper’s cabin in South Carolina, came up in Central Falls, Rhode Island; Sarah Paulson was born in Florida, raised by a single mom in Brooklyn. Sarah Jessica Parker was one of seven or eight kids in Ohio. Amy Adams was born in Vicenza, Italy. And Natalie Portman was born in Jerusalem. Where are their birth certificates? And the beautiful Ruth Negga was born in Addis Ababa, Ethiopia, raised in London — no, in Ireland I do believe, and she’s here nominated for playing a girl in small-town Virginia.

Ryan Gosling, like all of the nicest people, is Canadian, and Dev Patel was born in Kenya, raised in London, and is here playing an Indian raised in Tasmania. So Hollywood is crawling with outsiders and foreigners. And if we kick them all out you’ll have nothing to watch but football and mixed martial arts, which are not the arts.

Streep mused that the job of an actor is “to enter the lives of people who are different from us, and let you feel what that feels like,” and she observed that many performers this year “did exactly that.”

But there was one performance this year that stunned me. It sank its hooks in my heart. Not because it was good; there was nothing good about it. But it was effective and it did its job. It made its intended audience laugh, and show their teeth. It was that moment when the person asking to sit in the most respected seat in our country imitated a disabled reporter. Someone he outranked in privilege, power and the capacity to fight back. It kind of broke my heart when I saw it, and I still can’t get it out of my head, because it wasn’t in a movie. It was real life. And this instinct to humiliate, when it’s modeled by someone in the public platform, by someone powerful, it filters down into everybody’s life, because it kind of gives permission for other people to do the same thing. Disrespect invites disrespect, violence incites violence. And when the powerful use their position to bully others we all lose.

Streep concluded with an ever-so-modest call to action:

We need the principled press to hold power to account, to call him on the carpet for every outrage. That’s why our founders enshrined the press and its freedoms in the Constitution. So I only ask the famously well-heeled Hollywood Foreign Press and all of us in our community to join me in supporting the Committee to Protect Journalists, because we’re going to need them going forward, and they’ll need us to safeguard the truth.

Before turning to the response from President-Elect Donald Trump, that “person asking to sit in the most respected seat in our country,” let’s pause to consider what Streep said about him. She said that he “imitated a disabled reporter” out of an “instinct to humiliate,” that Trump has more “privilege, power and the capacity to fight back” than the reporter he imitated, and that “when the powerful use their position to bully others we all lose.” She called on the free press to “safeguard the truth,” and she called on Hollywood to support the free press.

Donald Trump, the leader-in-waiting of the free world, the President-Elect of the United States of America, the soon-to-be commander-in-chief of the most powerful military force in the history of the world, responded in four sentences over three tweets from 6:27 to 6:43 a.m.:

Meryl Streep, one of the most over-rated actresses in Hollywood, doesn’t know me but attacked last night at the Golden Globes. She is a Hillary flunky who lost big. For the 100th time, I never “mocked” a disabled reporter (would never do that) but simply showed him “groveling” when he totally changed a 16 year old story that he had written in order to make me look bad. Just more very dishonest media!

The first sentence is classic Trump: when someone criticizes him, he attacks the person’s appearance or professional accomplishments, in a manner that has nothing to do with the criticism. It’s as if petulant little Donald is on the playground at school; Meryl Streep throws him out at second base, and Donald responds, “Yeah, but you’re fat!”

The second sentence is also classic Trump: the opinion of any person who criticizes Donald Trump is trivial or biased or both – in this case, because Streep was a Hillary Clinton supporter. Trump may eventually find new enemies, but for now, the entire world is divided between the “us” who supported Trump in an election that was over two months ago, and the “them” who supported Clinton. There isn’t a conciliatory bone in his body, or a conciliatory instinct in his personality, and he lacks the class or the respect or the judgment even to try to fake it.

And it wasn’t sufficient for Trump to dismiss Streep’s criticism of him as biased by her support for Clinton; Trump had to belittle her support for Clinton by calling her a “flunky.” A flunky is a sycophant or a servile person who is retained because of her loyalty, not because of her ability or her intellect. In other words, Streep didn’t come to be a Clinton supporter out of any ability to reason, and she wasn’t welcomed by Clinton because of any positive quality.

As to losing big, grammatically speaking Trump was saying that Streep “lost big,” but I suspect he meant to say that Clinton “lost big” – which, of course, she didn’t. Trump lost the popular vote by a substantial margin, and his electoral win was the 46th biggest out of 58. By that standard of bigness, Hawaii – the 40th most populous American state – is a “big” state.

The third sentence is Trump’s only response to Streep’s actual accusation that he “imitated a disabled reporter” to “humiliate” and “bully” him. And his response was not a denial of her accusation. Trump did deny that he “mocked” the reporter, but Streep had not accused him of that. Trump insisted that instead of “mocking” the reporter, he only “showed [the reporter] ‘groveling.'” That is, he imitated the reporter, which of course is precisely what Streep had accused him of. That fact that Trump imagined that the reporter had been “groveling” pretty much proves Streep’s perception of an “instinct to humiliate.”

In his fourth and final sentence, Trump made his own accusation: “Just more dishonest media!” Maybe Trump thinks of Streep, and Hollywood, as part of the media. Maybe Trump thinks the media was “dishonest” to report on Streep’s speech. I suspect Trump was responding to media characterizations of Trump’s “imitation” of the disabled reporter: the New York Times, for instance, in reporting on Streep’s speech and Trump’s response, referred to Trump’s imitation as “appearing to mock a disabled reporter.” But accusing Streep of saying it was certainly inaccurate, and at least careless, if not dishonest: “People keep saying I intended to mock the reporter’s disability, as if Meryl Streep and others could read my mind.”

Streep delivered her speech last night with poise and passion – she is, after all, the greatest actress of her generation. Streep stood up for outsiders, for victims of powerful bullies, for freedom of the press, and for the truth. Trump delivered his response with the thin-skinned nastiness that is the hallmark of a narcissist. He stood up for no one but himself.


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