When Trump Took Control of His Own Investigation

There’s never been a mention that Donald Trump plays chess, but after a midterm House victory put him in check, the president countered with a move that puts the government in check. He has installed a Trump-besotted sycophant
Jeff Sessions deposed
as acting attorney general and only mere weeks after installing as Supreme Court justice who has said sitting presidents cannot be indicted or even subpoenaed.

Suddenly, the landscape has changed, and could keep changing day-to-day at Trump’s whim. We try here to outline the possible scenarios.

The new interim head of the Justice Department, Matthew Whitaker, has made it something of a campaign to denigrate the Mueller investigation, which he now will oversee, calling it a “witch hunt”, approvingly re-tweeting an article that called it the “Mueller lynch mob”, filling airwaves and cables with assaults designed to attract the notice of the administration and hopefully Trump himself. He left a long trail, much of in interviews on obscure radio programs that the media impressively dug Character witness: 
The owner of the consumer complaint website RippoffReport.com says that in 2015 Whitaker threatened, “using a lot of foul language”, to “ruin my business if I didn’t remove” all negative comments about World Patent Marketing Inc, with which Whitaker was associated as this article covers below. Whitaker, “would have the government shut me down under some homeland security law”.
    

up within hours of his appointment. On one he said in June of last year, “There’s not a single piece of evidence that demonstrates that the Trump campaign had any illegal or even improper relationships with the Russians. It’s that simple”. On Hannity that May he said that, based on reporting, it didn’t sound to him that then-FBI chief, James Comey, “believed that the president was telling him to stop the investigation” of Michael Flynn and anyway, “that doesn’t rise to the level of obstruction of justice”. As for the Mueller investigation, “I think it was ridiculous that Rosenstein determined that the Department of Justice couldn’t handle this in their ordinary course of work”, he said in an August 2017 radio interview. Whitaker told a co-panelist backstage at CNN that he readily flew from his home base in Iowa to New York just to be on CNN talk shows precisely to get a job in the Trump administration. It worked.

His record of flagrant bias brought immediate howls from Democrats, only to make fools of themselves for demanding that Whitaker, like Sessions, recuse himself from all matters concerning the Mueller investigation. Of course he won’t recuse himself. He was appointed by Trump on that basis. The natural line of succession would have been Deputy Attorney General Rod Rosenstein, impeccably qualified after 26 years of service, but Rosenstein was the stalwart who shielded the Mueller team from the White House and surrogates on the House committees doing Trump’s bidding.

Instead, the flabbergasting choice of Sessions’ chief of staff rather than a career professional made it snickeringly obvious what Trump was up to. Whitaker was a virtual mole, the White House’s “eyes and ears” at Justice, Trump’s chief of staff, Gen. John Kelly, had said. A confidential source in the administration told a Vox reporter that Whitaker was “committed to extract as much as possible as he could from the Justice Department on the president’s behalf” and that he had “privately provided advice to the president last year on how the White House might be able to pressure the Justice Department to investigate the president’s political adversaries”.

And yet President Trump told a reporter, “I don’t know Matt Whitaker”. He had told Fox News last month, “I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker”.

constitutional insults

We should expect the ethics department at Justice, career officials who have sworn to uphold the Constitution and not the president, to weigh in on Whitaker’s suitability to oversee the special counsel. If their ethical guidance says Whitaker is conflicted by the trail of pronouncements he has left behind, and they insist that he self-recuse, his refusal could at the least bring lawsuits, make the public more aware of the corruption, and spur rebellion in the department itself.

Beyond ethics, there is the question of whether the appointment of Whitaker is unconstitutional. In a New York Times op-ed, Neal Katya, law professor and an acting solicitor general under Obama, and George Conway, once reportedly considered to be solicitor general under Trump but better known as the husband of White House Senior Adviser Kellyanne Conway, flatly stated that “It’s illegal” to make anyone acting attorney general not confirmed by the Senate. Article II, Section 2 of the Constitution requires Senate confirmation for all “Officers of the United States”. As chief of staff, Whitaker did not need confirmation, but is now acting as a “principal officer” reporting directly to the president. Lacking confirmation, “anything Mr. Whitaker does, or tries to do, in that position is invalid”, they argue. “It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power”.

Trump made the appointment under the 1998 Federal Vacancies Reform Act which allows the president to fill an important slot in the government for an interim period of up to 210 days. Two problems are drawing arguments from constitutional lawyers.

 Interim appointments are permitted only for vacancies brought about by death or resignation. Using the Act to fire someone and fill the position without confirmation is not permitted under the law. Was Sessions pressured to begin his letter to the president with, “At your request, I am submitting my resignation” to get around the law’s restriction on firing? Even so, the argument is that resignation at the request of a superior is a firing, and that makes the appointment illegal.

 The second argument is that an interim appointee serving in a “principal officer” position — certainly the case for acting attorney general — must, according to the above-cited Appointments Clause of the Constitution, be confirmed by the Senate. The Legal Counsel office under President George W. Bush came up with the opinion that anyone serving only in an acting capacity is an “inferior officer” meant to step in immediately to keep the government working and therefore not subject to the delays of confirmation. (that office was infamous for serving up tortuous opinions to suit Bush and Cheney — Google “John Yoo” and “torture”).

But three years ago, the Supreme Court decreed that all the decisions of an unconfirmed Obama interim appointment to the National Labor Relations Board were invalid, with Justice Clarence Thomas writing in his opinion that it is the position that decides whether it is that of a “principal officer.

“I have the best people”

In any event, it is unlikely that Whitaker could be confirmed. He was the United States Attorney for the Southern District of Iowa from 2004 to 2009, but what appears to be his last job before turning himself into a media commentator was his membership on the advisory board of a Miami-based company named World Patent Marketing that charged inventors thousands of dollars to patent and promote their creations but in fact never delivered. Whitaker appeared in a couple of promotional videos for the company and, citing his background as a U.S. Attorney, he threatened at least one unhappy customer with “serious civil and criminal consequences”.

The Federal Trade Commission shut the company down last year after calling it a fraudulent scheme that “collected almost $26 million by promising starry-eyed inventors it would turn their inventions into best sellers”, said the publication. The FBI has initiated a criminal investigation of the company. The FTC obtained a judgment of just under $26 million to be returned to consumers, a scam and amount uncannily like the $25 million Donald Trump had to pay in restitution to defrauded students duped by his Trump “University”.

The senators in a confirmation hearing would also undoubtedly like to hear Whitaker’s views about the courts, which he thinks have too much power to strike down laws and should be inferior to the other two branches of government. Of all the “bad rulings” of the Supreme Court, Whitaker says he would start with 1803’s Marboro v. Madison, the foundational bedrock ruling which vested the review of laws with the courts. It is revealing of Trump’s disdain for the law that he would choose someone of Whitaker’s destructive views to be at the top of the Justice Department.

whitaker’s options

That the president fired Sessions the moment the midterm elections were over at first indicated he would fire Mueller before Mueller could issue an imminently expected report. But now conjecture has settled on a different likely strategy.

Firing Mueller would create an uproar. Already there were impromptu protest demonstrations across the country the moment Sessions was cashiered. Moreover, the regulations governing the special counsel require cause for firing; given the rectitude of Mueller’s reputation, that’s a non-starter. But Mr. Whitaker has a host of other options:

 He has already put forth, when acting as a pundit on CNN.com, the tactic of defunding the Mueller operation, crippling its ability to continue.

 He can constrict the latitude of inquiry. Whitaker wrote an op-ed in August 2017 that it was time for the Justice Department “to order Mueller to limit the scope of his investigation” and he must have earned the president’s adoration by writing “The Trump Organization’s business dealings are plainly not within the scope of the investigation, nor should they be”.

 He can block any subpoenas the Mueller group wants to issue, including an attempt to force the president to answer questions — a back and forth tussle that has been waged for most of the year.

“I have the best people”

In any event, it is unlikely that Whitaker could be confirmed. He was the United States Attorney for the Southern District of Iowa from 2004 to 2009, but what appears to be his last job before turning himself into a media commentator was his membership on the advisory board of a Miami-based company named World Patent Marketing that charged inventors thousands of dollars to patent and promote their creations but in fact never delivered. Whitaker appeared in a couple of promotional videos for the company and, citing his background as a U.S. Attorney, he threatened at least one unhappy customer with “serious civil and criminal consequences”.

The Federal Trade Commission shut the company down last year after calling it a fraudulent scheme that “collected almost $26 million by promising starry-eyed inventors it would turn their inventions into best sellers”, said the publication. The FBI has initiated a criminal investigation of the company. The FTC obtained a judgment of just under $26 million to be returned to consumers, a scam and amount uncannily like the $25 million Donald Trump had to pay in restitution to defrauded students duped by his Trump “University”.

The senators in a confirmation hearing would also undoubtedly like to hear Whitaker’s views about the courts, which he thinks have too much power to strike down laws and should be inferior to the other two branches of government. Of all the “bad rulings” of the Supreme Court, Whitaker says he would start with 1803’s Marboro v. Madison, the foundational bedrock ruling which vested the review of laws with the courts. It is revealing of Trump’s disdain for the law that he would choose someone of Whitaker’s destructive views to be at the top of the Justice Department.

whitaker’s options

That the president fired Sessions the moment the midterm elections were over at first indicated he would fire Mueller before Mueller could issue an imminently expected report. But now conjecture has settled on a different likely strategy.

Firing Mueller would create an uproar. Already there were impromptu protest demonstrations across the country the moment Sessions was cashiered. Moreover, the regulations governing the special counsel require cause for firing; given the rectitude of Mueller’s reputation, that’s a non-starter. But Mr. Whitaker has a host of other options:

 He has already put forth, when acting as a pundit on CNN.com, the tactic of defunding the Mueller operation, crippling its ability to continue.

 He can constrict the latitude of inquiry. Whitaker wrote an op-ed in August 2017 that it was time for the Justice Department “to order Mueller to limit the scope of his investigation” and he must have earned the president’s adoration by writing “The Trump Organization’s business dealings are plainly not within the scope of the investigation, nor should they be”.

 He can block any subpoenas the Mueller group wants to issue, including an attempt to force the president to answer questions — a back and forth tussle that has been waged for most of the year.

 Whitaker now gets to be boss of the Southern District of New York which is bringing cases involving Trump’s lawyer Michael Cohen, and which is reportedly looking into the alleged tax fraud committed by the Trump family in the massive transfer of wealth to son Donald, as revealed in a year-long investigation by The New York Times that ran to eight broadsheet-size pages in the print edition.

 Mueller is obliged to submit a report to the Justice Department. There is no legal requirement that it go any further, which means Whitaker can squash the report altogether, with taxpayers getting nothing for their money. Deprived of the evidence and testimony that the team has gathered over more than a year, that will make it difficult for congressional committees to flesh out their own investigations and assemble the facts required for an impeachment case, if that becomes warranted.

oversight

Pundits on the left, sitting in panels on cable shows, point out the pitfalls for the president and his hand-picked acting attorney general. Any action against the Mueller investigation runs theation, but is now acting as a “principal officer” reporting directly to the president. Lacking confirmation, “anything Mr. Whitaker does, or tries to do, in that position is invalid”, they argue. “It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power”.

Trump made the appointment under the 1998 Federal Vacancies Reform Act which allows the president to fill an important slot in the government for an interim period of up to 210 days. Two problems are drawing arguments from constitutional lawyers.

 Interim appointments are permitted only for vacancies brought about by death or resignation. Using the Act to fire someone and fill the position without confirmation is not permitted under the law. Was Sessions pressured to begin his letter to the president with, “At your request, I am submitting my resignation” to get around the law’s restriction on firing? Even so, the argument is that resignation at the request of a superior is a firing, and that makes the appointment illegal.

 The second argument is that an interim appointee serving in a “principal officer” position — certainly the case for acting attorney general — must, according to the above-cited Appointments Clause of the Constitution, be confirmed by the Senate. The Legal Counsel office under President George W. Bush came up with the opinion that anyone serving only in an acting capacity is an “inferior officer” meant to step in immediately to keep the government working and therefore not subject to the delays of confirmation. (that office was infamous for serving up tortuous opinions to suit Bush and Cheney — Google “John Yoo” and “to

Amazon’s Bait and Switch Headquarters Competition

When over a year ago Amazon announced that it would look for where to site a second headquarters, it set off a bidding frenzy from 238 cities and regions, even Alaska and Puerto Rico. They offered billions of dollars in tax breaks in return for the 50,000 jobs that Amazon predicted.

Exactly a year ago, we ran a piece called “How Corporate Welfare Fleeces American Cities which you can access by clicking the title. It gave a number of examples, contending that “having outstripped 238 bidders, the Amazon
It’s nothing new. This Time
cover dates from November, 1998
winner is apt to be quite a loser…Someday soon we will see a gaggle of politicians somewhere bleeding their town white to be on the stage with Jeff Bezos to announce the Amazon trophy”.

What’s really stunning about Amazon’s announcement that it is splitting its choice between two cities, is that there has been no mention whatever of either Crystal City, Virginia, or Long Island City, New York (part of New York City) halving their offer to match Amazon’s halving the job count to 25,000 in each location. Jeff Bezos probably can’t believe that the likes of New York Governor Andrew Cuomo and New York City Mayor Bill De Blasio would be fool enough to fall for the con.

For comment, the PBS NewsHour had on Richard Florida, an urban studies theorist and a professor at the University of Toronto’s School of Cities. And he had assisted two of the cities formulate their bid. He was asked, “Are the incentives that the cities are offering and the states are offering, is it worth getting the headquarters?” Florida answered,

No, absolutely not. The level of incentives that Governor Christie was talking about [New Jerseys offer while he was still governor], $5 billion, I think — the state of Maryland, I believe, put $7 billion on the table — there’s no way that 25,000 or 50,000 jobs are worth that”.

Confirming everything we had written in our article of a year ago, Florida continued:

“But why are we going to hand out hundreds of millions or billions to a trillion-dollar company and the world’s richest man? That — it was really the thing that galled me on this and many other people, was the way our progressive cities and mayors, our blue cities and mayors, really caved into this competition”.

He thinks cities should band together in a nonaggression pact that would put an end to gouging by companies considering moves and sports teams demanding that cities build their stadiums.

“I think HQ2 is a ruse”, he went on. His belief is that Amazon wanted to get to know as much as they could about all those locations — at their expense, of course. They wanted to put together the best database on economic development and site selection for logistics, production facilities, and talent. An in fact, Amazon has announced they’re putting about 6,000 jobs in some of the 218 cities that didn’t make the final 20. So the competitors are getting something for their efforts, but 6,000 jobs spread wide in no way matches what these cities have spent trying to attract Amazon.

Florida said that when Amazon narrowed the list to 20 cities, he picked either Washington, DC, where Bezos has a $32 million mansion, or New York, because it’s the country’s biggest headquarters city. Proof of ruse: How could Amazon have chosen New York City with its dilapidated and failing subway system?

One or the other was always going to be his choice, Florida said, and it turned out to be both, so “Why put 236 cities through this?” Those presentations cost them a lot of money to analyze and prepare. With the 50,000 jobs split between them, let’s watch whether these cities cut their bids in half or whether Bezos will fleece them doubly.

Medicare for All? Have They Gone Off Their Meds?

If Republicans keep control of Congress, their agenda will be to finally and fully repeal the Affordable Care Act (Obamacare) and then start chipping away at entitlement programs. How do we know? They’ve said so. Asked about the mounting deficit, Senate Majority Leader Mitch McConnell said, “It’s very disturbing and it’s driven by the three big entitlement programs…Medicare, Social Security and Medicaid”, making no mention of the 2017 tax cuts. “It’s a bipartisan problem: unwillingness to address the real drivers of the debt by doing anything to adjust those programs”.

The official Republican agenda is to encourage those of Medicare age to leave the program and instead opt for subsidy vouchers to buy insurance in the private
market. Far left progressives dream of the opposite: government-run Medicare for All. Some congressional candidates are even running in the midterm elections on the promise to fight for a program that is clearly beyond impossible in this politically polarized country.

Conservatives are rattled by the socialist leanings of the young, even to the extent of the White House Council of Economic Advisers issuing a 72-page report that links Democrats to the evils of failed economic policies. What progressives have in mind is something along the lines of the Scandinavian countries, but the report goes straight to Venezuela for
its example of where social programs such as Medicare for All and free college tuition will lead. A White House press release raised the alarm with its title, “Congressional Democrats Want to Take Money from Hardworking Americans to Fund Failed Socialist Policies”.

But in the full realization that it’s rather pointless even to discuss it in the America that we now live in, with half of Americans shouting “socialism!” whenever such schemes are mentioned without ever looking further, we thought we’d take a moment to see just what Medicare for All would mean.

going for broke

That the plan introduced by Vermont’s independent senator, Bernie Sanders, grabbed all the attention doesn’t help the progressives’ cause; his is the most impractical plan by being the most extreme. America is alone among advanced nations in not having universal healthcare but all other countries have hybrid programs that mix government payment for basic healthcare and private insurance for more complete coverage. In contrast, Sanders goes all in. His website announces a plan that…

“will cover the entire continuum of health care, from inpatient to outpatient care; preventive to emergency care; primary care to specialty care, including long-term and palliative care; vision, hearing and oral health care; mental health and substance abuse services; as well as prescription medications, medical equipment, supplies, diagnostics and treatments.”

All that with no co-payments, no deductibles. This is no longer Medicare, which has layers of coverage with its parts A, B, C, and D, does not pay 100%, and is completely lacking in catastrophic coverage, which leads seniors to buy “medigap” insurance for what Medicare does not pay. The website text describing Sanders’ plan imagines no need for further insurance. It covers everything. Employer-paid insurance would vanish.

cutting out the middlemen

The Affordable Care Act handed the business to insurance companies and did nothing to control drug prices. The single-payer format of Medicare for All would jettison those concessions that won not a single Republican vote in either house of Congress. That would bring automatic cost savings: the insurance companies would be cut adrift along with their hefty management paychecks and corporate profits that waste 13% of our insurance premium payments. Medicare — apart from offshoot programs such as Medicare Advantage — boast only 1.1% administrative costs.

The other big advantage: the weight of Medicare for All sitting at the bargaining table across from pharmaceutical companies would drive drug prices far down. The goal should be to end the stratospheric drug prices big pharma charges in the U.S. to bring into parity the much lower prices successfully negotiated by universal healthcare administrators at bargaining tables elsewhere in the world.

Destined to come to an end under Medicare for All, were it ever enacted, would be the absurd law passed by a Congress grateful for drug companies’ contributions to their re-election campaigns that forbids Medicare from negotiating drug prices. The law, in tandem with adding to Medicare the coverage of outpatient prescription drugs, a George W. Bush presidency gift to the drug companies, caused Medicare costs to balloon.

A less mentioned saving would be the elimination of employee health insurance paid by employers. It has been an outrage that for all these years employees have been getting this tax-free addition to their income while workers outside such companies pay for their insurance with dollars left after paying taxes. In 2017 the government forfeited $854 billion by not taxing this employee income. Under Medicare for All, companies would likely be required to increase the 1.45% payroll they now deduct for Medicare, but they will no longer be paying for employee insurance that now verges on $20,000 a year for family plans. That savings will increase their taxable profits, a considerable amount that should count as an offset to Medicare for All’s costs.

magical thinking

These savings are helpful but come nowhere near the funding needed for universal healthcare. BernieSanders.com estimates his Medicare for All plan would cost $1.38 trillion per year. No detail is given for how this figure was arrived at; it’s impossibly low considering that U.S. healthcare cost $3.5 trillion in 2017. No mention is made of rising costs in future years. To pay for his estimate, the site lists a number of revenue raising changes that add to the $1.38 trillion:

 Employees would pay 2.2% of their paychecks, up from 1.45%.
 The 1.45% that employers now pay would rise to 6.2%, matching what employers contribute for Social Security.
 
Income tax rates would be scaled upward: the current maximum of 37% that starts at $600,000 would start at $250,000 in the Sanders plan, and step up to a top rate of 52% for households making more than $10 million a year.
 
Capital gains and dividends would be taxed the same as income from work.
 
Estate taxes would rise an unspecified amount.

Remarkably, we see from this that Sen. Sanders would have the middle class, those earning less than $250,000, pay almost nothing for healthcare — just 2.2% of payroll, and not even that. The 2.2% would kick in only on income beyond the standard and per-person deductions — $28,800 for a family of four. A household making $50,000 a year would pay only $466. Households now paying close to $20,000 for previously mentioned family plans would have their healthcare almost entirely subsidized by others.

spoiler alert

The critique that grabbed all the attention is by Charles Blahous for The Mercatus Center at George Mason University. A former deputy director of President George W. Bush’s National Economic Council, Blahous came up with $32.6 trillion in funds that the federal government would need across the first 10 years to pay for Medicare for All. Blahous says he arrived at this number by hewing close to Sanders’ assumptions, allowing for the cost savings enumerated in his plan, and most notably assuming that all health providers would be paid Medicare rates that run about 40% less than private insurance. In an aside, Blahous calls the 40% assumption unrealistic. Hospitals and doctors are sure to balk, forcing higher payments and further cost that would add hundreds of billions to his $32.6 trillion.

“Even if Congress were to double what it collects in individual and corporate income taxes, there still wouldn’t be enough money added to the federal coffers to finance the costs” of the Sanders plan, Blahous wrote in a Wall Street Journal op-ed.

Those on the left point out that George Mason University tilts right, Mercatus is partly funded by the Koch Brothers (Charles Koch sits on the Mercatus board), so the scary $32.6 trillion over 10 years might be meant to send shivers of fright through the body politic. Why should it, though, if national healthcare spending is already $3.5 trillion for a single year. Blahous’ number looks like a bargain.

For that matter, no one’s numbers are all that clear. Sanders’ total cost makes no sense. When Blahous says “paying for every American’s health-care expenses would increase federal spending by $32.6 trillion [emphasis added]”, does he mean beyond what the government now spends or is his cost all inclusive? We are left to make simplistic back of the envelope calculations:

If the $2.445 trillion in the table is increased by 3.3% a year compounded for 10 years, that gets us close to the Blahous $32.6 trillion 10-year estimate, which suggests his cost is additional to what the government now pays.

A careful sorting out of costs and sources of revenue to entirely pay for Medicare for All (entailing major adjustments to Sanders’ notion of who pays what) is surely needed, if only for the purpose of knowing whether Medicare for All is at all conceivable.

The dream of universal health care stems from more than the desire to replace with a single, orderly program America’s clumsy hodge-podge of private insurance and government programs that leave millions unprotected. It stems from the belief that access by all to healthcare is a fundament of any civilized nation. Illness strikes unfairly at all ages and in the U.S. the costs can ruin families and lives. To cast people adrift, leaving them susceptible to life’s vicissitudes, is immoral. We should work with open minds to find a way.