We Sent a Letter to the Supreme Court on Gerrymandering

It is expected that the Supreme Court, having grown weary of dealing with one after another state stacking the deck against the opposition political party by the way they draw electoral districts, will in June, in cases brought against Maryland and the notorious North Carolina, come up with general rules for states to follow to avoid the gavel’s blow in the future.

But as we’ve argued here, here, and here, the whole ugly business of two centuries of gerrymandering could be swiftly ended if the black-robbed solons could only do some 21st Century catch-up.

In February, we sent the following letter — individually addressed to each of the nine justices — in the hopes of awakening them to technological possibilities. It will do no good, of course. Wouldn’t you know, not one of them — they each have staffs, after all — had the courtesy to reply. Not so much as a form letter, an e-mail acknowledgement, zero:

                 February 23, 2019
The Honorable

The Supreme Court of the United States
One First Street N.E.
Washington, D.C. 20543

Dear Justice        ,

The Court is again about to hear cases involving gerrymandering. News reports infer that you and fellow justices may attempt to arrive at limits how far lawmakers can go in mapping electoral districts. It will probably be difficult to come up with other than general rules or guidelines and that will lead to still further challenges, a stream of cases to deal with one-by-one that the Court would rather avoid.

We write only to make something apparent that may not be. Gerrymandering today is done with computer software than optimizes far more than humans could in the past, which makes the practice all the more troubling for its creating impregnable districts to benefit whichever party is in power.

This you know. What may not be apparent is that same software — algorithms that know how to work with geography, census and voting data — can be reworked to create entirely agnostic election districts that pay no attention to political party, voting patterns, or ethnic groups. Software that begins by dividing a state geographically into the requisite number of districts, then iteratively shapes them, keeping neighborhoods contiguous, delivering the result that each district contains as close as possible to equal numbers of people. True, impartial democracy.

(In fact, this has already been done, and by a single Massachusetts individual. An article can be found here:    wapo.st/2GYaJrW      )

It’s understood that the Supreme Court cannot write laws forcing this method on the states. Article I, Section 4 grants states control of elections. But the Court could urge in the strongest terms that the above-outlined approach be adopted. Your imprimatur could spur follow-up by citizen groups.

It is stunning that gerrymandering, a grotesque corruption of democracy, has been allowed to exist during almost all the nation’s history. We now have at hand an entirely neutral way to rid us of this scourge altogether.

Respectfully submitted,

The 2020 Census Is Rigged. The Supreme Court Is Poised to Okay That

It’s Job #1, the first thing the newly adopted Constitution instructed the United States to do, so important that it’s the Court Turns Thumbs Down: June 27: We are delighted to have predicted wrongly and doubly pleased to see the dishonest Wilbur Ross’s deceitful plot get its comeuppance.     Editors

document’s 6th sentence. It orders that an “actual Enumeration shall be made” of inhabitants every 10 years in order to apportion to the states, based on their “respective numbers”, delegates to the House of Representatives.

The census is next year. A fierce battle has been waged in the courts over the last two years between the Trump administration and the attorneys general of 18

states allied with a number of immigrant rights organizations over whether the Commerce Department should be allowed to add this single question to the census form: “Is this person a citizen of the United States?”

Those opposed know that the question will affect the count, and not in their favor. In this atmosphere of an administration that separates asylum applicants from their children, conducts deportation raids by Immigration and Customs Enforcement (ICE), and has a president who tweets that immigrants are criminals and rapists, the undocumented already in the country will be too fearful to submit their UPDATE: June 10: If there was any doubt that the citizenship question is meant to tip the census in favor of Republicans, it was dispelled when the estranged daughter of a deceased redistricting strategist released his files containing a seminal 2015 report saying that amending the question “would clearly be a disadvantage to the Democrats” and would be “advantageous to Republicans and non-Hispanic Whites”. That gave the lie still more conclusively to Commerce Secretary Wilbur Ross’s testimony to Congress that the question was to provide data for the Voting Rights Act.
    

census forms with an obligatory answer to that question. Nor will they answer the door when census-takers make the rounds to fill in who’s missing. The government is bound by law not to reveal the identity of those who participate, but with this administration trust is lacking.

The foremost concern of the 18 states is that, if undocumented immigrants are missing from the count, they will lose seats in the House of Representatives. Focus groups conducted by Census Bureau contractors have found this to be true. Its statisticians estimate that 5.8% of households with a non-citizen will not answer the census. That’s 6.5 million people. Other experts think the percentage will be far higher. If just 15% of non-citizens evade the census, that will be enough for New York and California to each lose a seat to Colorado and Montana.

And they will see a proportionate reduction in everything else that rides on census counts. Hundreds of billions of dollars over the next decade will be allocated to the states based on their populations for such diverse programs as HeadStart, Medicare, the Supplemental Nutrition Assistance Program (food stamps), Pell grants, school lunch programs, and highway spending. Researchers tallied that 132 government programs used census information in fiscal 2015 to allocate more than $675 billion. Businesses depend on census data for myriad purposes: where best to locate bank branches, supermarkets, fast food restaurants, distribution centers. States use census data to draw the boundaries of election districts for their own legislatures and government posts.

So, why the citizen question?

Wilbur Ross, secretary of the Commerce Department, which is in charge of the census, testified before Congress last year that in adding the citizenship question to the census, he was he was responding “solely” to a Department of Justice request. He knew of no talks with the White House about the matter. Justice needed the data to aid in enforcing the Voting Rights Act, which protects against discrimination. For districts where a minority group is in the majority, to qualify for protection against nefarious attempts at dilution of their ranks, Justice has first to be certain that 50% or more of those eligible to vote (age 18 or over) belong to that minority else there’s nothing to protect.

Sounds good, right? Except, when one of three lawsuits went to court, a senior Justice Department official in sworn testimony said the data is not necessary. It has never been needed before and the Voting Rights Act dates from 1965.

And then Ross’s story unraveled

Internal government documents that surfaced in the principal lawsuit in New York revealed calls, e-mails, and depositions showing Ross had lied to Congress. The White House had begun discussing including the question right after the Trump administration took office, primarily at the instigation of then chief strategist and immigration foe Stephen Bannon, and Ross was involved from the outset. As early as May 2017, irritated by lack of progress, Ross groused in an e-mail to an aide, “I am mystified that nothing has been done in response to my months-old request that we include the citizenship question”, which admits that he had requested it. Bannon urged that Ross “talk to someone about the census”, so Ross even met with Kris Kobach, former Kansas secretary of state and an anti-immigration extremist who is convinced, despite no evidence, that there is rampant voter fraud. President Trump had appointed Kobach to a panel to purge voter rolls, but it collapsed when states refused to submit them to the federal government.

Census questions cannot be changed by caprice. There is the federal Administrative Procedures Act that calls for officials to make changes based on evidence of their need and subject to review by other sections of the government. The Commerce Department would have no reason for asking the citizenship question, so Ross had needed a sham cause for a decision already made. He lobbied Homeland Security to come up with a reason, and then the Justice Department. The latter finally came through with a letter requesting the question’s addition to census forms for the invented reason of the Voting Rights Act. Which is to say that it was Mr. Ross who pressured Jeff Sessions and his Justice Department, not the other way around.

the unspoken agenda

Conservatives complain that including the undocumented swells the counts of Democratic states such as California and New York, which results in their getting additional undeserved seats in the House of Representatives and more of federal dollars. The Constitution calls for everyone to be counted. Proof is that slaves, who were not citizens, were explicitly to be included in the count (albeit each as only 3/5th of a person). So the strategy was to find a way to discourage the undocumented from participating in the census. What better way than to scare them off by requiring everyone to answer ‘yes’ or ‘no’ to “Is this person a citizen of the United States?”. Those without papers will be fearful to fill out the census questionnaire at all: a ‘no’ answer will invite deportation; a ‘yes’ answer invites a fraud conviction.

That undercounting in states with large immigrant populations would cost them seats in the House is as it should be for the many who think the number of representatives from a state should be based solely on the number of citizens, with persons here illegally left uncounted. In the House, it’s a zero sum game. Their number was capped in 1929 at 435 members. So taking from California and New York would mean giving more power to smaller, more rural, more conservative states. It also means heading off the gain in seats Texas can expect with its swelling immigrant population and handing a seat to, say, Alabama. In fact, Alabama has already asked a federal district court to rule that undocumenteds be excluded entirely from counts used to apportion those 435 House seats among the states.

The left sees this as yet another salvo in an emerging conservative campaign to eliminate non-citizens entirely from population counts used for redistricting, notwithstanding the 14th Amendment requirement that House apportionment be based on “the whole number of persons in each state” and a Supreme Court that has long ruled that %he federal Administrative Procedures Act that calls for officials to make changes based on evidence of their need and subject to review by other sections of the government. The Commerce Department would have no reason for asking the citizenship question, so Ross had needed a sham cause for a decision already made. He lobbied Homeland Security to come up with a reason, and then the Justice Department. The latter finally came through with a letter requesting the question’s addition to census forms for the invented reason of the Voting Rights Act. Which is to say that it was Mr. Ross who pressured Jeff Sessions and his Justice Department, not the other way around.

the unspoken agenda

Conservatives complain that including the undocumented swells the counts of Democratic states such as California and New York, which results in their getting additional undeserved seats in the House of Representatives and more of federal dollars. The Constitution calls for everyone to be counted. Proof is that slaves, who were not citizens, were explicitly to be included in the count (albeit each as only 3/5th of a person). So the strategy was to find a way to discourage the undocumented from participating in the census. What better way than to scare them off by requiring everyone to answer ‘yes’ or ‘no’ to “Is this person a citizen of the United States?”. Those without papers will be fearful to fill out the census questionnaire at all: a ‘no’ answer will invite deportation; a ‘yes’ answer invites a fraud conviction.

That undercounting in states with large immigrant populations would cost them seats in the House is as it should be for the many who think the number of representatives from a state should be based solely on the number of citizens, with persons here illegally left uncounted. In the House, it’s a zero sum game. Their number was capped in 1929 at 435 members. So taking from California and New York would mean giving more power to smaller, more rural, more conservative states. It also means heading off the gain in seats Texas can expect with its swelling immigrant population and handing a seat to, say, Alabama. In fact, Alabama has already asked a federal district court to rule that undocumenteds be excluded entirely from counts used to apportion those 435 House seats among the states.

The left sees this as yet another salvo in an emerging conservative campaign to eliminate non-citizens entirely from population counts used for redistricting, notwithstanding the 14th Amendment requirement that House apportionment be based on “the whole number of persons in each state” and a Supreme Court that has long ruled that “whole number” includes non-citizens. But that doesn’t govern in-state elections. In the 2016 Texas case, Evenwel v. Abbott, plaintiffs argued for sizing electoral districts by counting only eligible voters, because including undocumented immigrants gave urban areas more districts. The change would weaken liberal-leaning cities and give conservative rural areas more sway. Lacking a ninth justice, the case resulted in a 4-to-4 stand-off, but there’s a 5th conservative on the bench today. Missouri and Nebraska already tried, though unsuccessfully, to exclude non-citizens from the population totals used to redraw voting districts. Democrats see this as all of a piece with the many voter suppression laws enacted in Republican-controlled states, aimed at reducing Democratic votes by students, blacks and Hispanics.

”fatally undermine”

The Trump administration had unsuccessfully asked the Supreme Court to stop them, but lawsuits went to trial in three federal district courts — New York, California, and Maryland — to resolve the question of whether the citizen question was justified or was for political gain. In New York the trial ran for three weeks, argued by lawyers representing state attorneys general, city governments, and a cluster of civil-liberties advocacy groups who averred that a question about citizenship would “fatally undermine” the accuracy of the census, and who showed how the justification for the question’s inclusion had been “reverse engineered” to something other than its true motive.

The upshot? All three federal judges in the three states ruled that Wilbur Ross violated the law when he ordered the Census Bureau to add the citizen question. Running afoul of a “smorgasbord” of rules governed by the Administrative Procedure Act, as the New York judge, Jesse Furman, put it, Ross had “alternately ignored, cherry-picked, or badly misconstrued the evidence”; had “failed to justify significant departures from past policies and practices”; and had made false or misleading statements under oath. Ross proposed the question’s addition at the last minute before the April 1, 2018 deadline, short-cutting years of vetting customary for census changes. Against actual evidence, Ross has insisted that there is no clear evidence that the citizenship question would deter people from filling out census forms.

Furman wrote that there was insufficient evidence that Ross sought to discriminate against non-citizens — the Supreme Court had blocked Furman’s order that Ross be deposed to question him — but the administration’s motives were suspect judging from President Trump’s “racially charged” statements that Furman quoted: his branding immigrants as “these people from shithole countries”, that some immigrants “turn out to be horrendous”, are not “the best people”, and some “aren’t people, these are animals”. While those slurs were not prompted by the citizenship question, the judge wrote that indications that Mr. Trump may have been involved in the deliberations “help to nudge” the plaintiffs’ claim of intentional discrimination “across the line from conceivable to plausible.”

why wasn’t that that?

That was in November of last year. Then the Supreme Court inserted itself and heard the case in April of this year. Because the census needs to know by end June, the high court had skipped leap-frogged the appellate court level to accommodate the government, which needs to start printing millions of census questionnaires. The Supreme Court needs to step in to resolve cases where appellate courts render verdicts that disagree, but no one seems to be asking why the Court has invited itself to review a case in which three federal courts agree.

Questions from the conservative justices made it clear that they have already decided that the question will be included. No regard was paid to the lower courts’ rulings that Ross was guilty of many irregularities. Some questions were strangely divorced from what is happening in this country. See if you can make sense of Justice Samuel Alito’s reasoning for why failure to answer the citizen question can’t be attributed only to undocumenteds:

”Citizens and non-citizens differ in a lot of respects other than citizenship. They differ in socio-economic status. They differ in education. They differ in language ability. So I don’t think you have to be much of a statistician to wonder about the legitimacy of concluding there is going to be a 5.1% lower response rate because of this one factor.”

Neil Gorsuch’s comments were even more baroque. There are other explanations for non-response to questions, he said. The questionnaires may be too long, and less affluent households may not have the time to fill them out completely. “What do we do with the fact that we don’t know?”, Gorsuch asked.

But we do know. Census Bureau statisticians aren’t guessing; as said, they conduct focus groups, also field tests, and change only one variable at a time.

When New York Solicitor General Barbara Underwood labeled as false all the reasons that Ross had cited to justify adding the question, Chief Justice John Roberts challenged her assertion, asking, isn’t this critical data for enforcement of the federal Voting Rights Act? He evidently knew nothing of the back story, that the Justice Department request had been solicited as cover for the behind the scenes machinations of Ross, Bannon, and Koback, and of which Trump surely at least knew. Roberts seems to have swallowed whole what U.S. Solicitor General Noel Francisco had said:

“There’s no evidence in this record that the secretary would have asked this question had the Department of Justice not requested it. And there’s no evidence in this record that the secretary didn’t believe that the Department of Justice actually wanted this information to improve Voting Rights Act enforcement.”

Justice Kagan said the record contained plenty of evidence that Mr. Ross had been “shopping for a need” among more than one government department. She was clearly irate describing those efforts to Francisco. Ross…

“goes to the Justice Department. Justice Department says we don’t need anything. Goes to D.H.S. D.H.S. says they don’t need anything. Goes back to the Justice Department. Makes it clear that he’s going to put in a call to the attorney general. Finally, the Justice Department comes back to him and says, ‘O.K., we can give you what you want.’ So you can’t read this record without sensing that this need is a contrived one.”

She said she had searched the record and could find no stated reason why Ross had rejected the conclusions of his own experts.

It was interesting to discover that both Justices Kavanaugh and Gorsuch have proved to be adaptable. In arguing for the question’s inclusion, Gorsuch said that asking about citizenship was practiced around the world in “virtually eve

Democrats are doing their damnest to lose

<|||>

What Mueller Report? Trump, Putin and Barr Collude to Disappear It

Donald Trump and Vladimir Putin spoke by phone for an hour on May 3rd, agreeing that the two-year Mueller investigation was a “Russian hoax”, imaginary intrusions into the 2016 election apparently, and, as Trump said to reporters, the Mueller report “ended up being a mouse”. The question of Russian intervention in the 2020 election? Trump said it did not come up.

Other subjects discussed sounded optimistic and mutually beneficial, but on this topic our president once again is in accord with Putin’s claim of no election

interference — he memorably said, standing alongside Putin in Helsinki, “I don’t see why they would” — and elects to ignore the overwhelming evidence of the Mueller report and his own intelligence services. Just days earlier, FBI Director Christopher Wray said what…

“has continued pretty much unabated is the use of social media, fake news, propaganda, false personas, etc…. pretty much a 365 days a year threat… just kind of a dress rehearsal for the big show in 2020.”

Trump shows no interest in combating the Russian interference that helped him get elected in 2016, while at the same time equating any discussion of malign Russian activity as questioning the legitimacy of his winning the presidency — his “Achilles heel”, as former aide Hope Hicks put it. Acting Chief of Staff Mick Mulvaney even warned fired Homeland Security Secretary Kirstjen Nielsen to make no mention in front of Trump of her department’s efforts to stop Russian meddling in the 2020 election. Mulvaney told her it “wasn’t a great subject and should be below his level”.

doubling down on obstruction

Trump also wants any further investigations silenced. “We’re fighting all the subpoenas”, he said, stiffing Congress’ constitutional right of oversight of the executive branch, refusing to provide any documents to the several investigative committees, claiming executive privilege to disallow former White House counsel Don McGahn and others from testifying, and pleased with an attorney general who lied to Congress and refused to appear before the House Judiciary committee. Can there be any doubt that Putin cheered him on. “Constitutional crisis” has regularly been declared by politicians and the media during the Trump years, often leaving us to wonder just what part of the Constitution they had in mind, but this time we have the real thing.

disappearing half the report

Now appears a 5-page letter to Attorney General William Barr, written by White House counsel Emmet Flood, that slams the Mueller report for being “political” for saying the president could not be exonerated from claims of obstructing justice. Flood argues that Mueller should have acted as a prosecutor and come to an explicit judgment. He writes, “What prosecutors are supposed to do is complete an investigation and then either ask the grand jury to return an indictment or decline to charge the case”. But indicting a sitting president was not an option for Mueller, according to
Attorney General William Barr faces off
against Senator Kamala Harris

guidelines of the Justice Department’s Office of Legal Counsel, and by “decline to charge the case” Flood means that if you can’t indict, say nothing. Flood is attempting to undo the second half of Mueller’s statement that “While this report does not conclude that the President committed a crime, it also does not exonerate him”. Flood effectively says there should have been no Volume 2 about obstruction in the report, that any implication of obstruction by the president should have been silenced, that there should be no mention of the 10 instances that Mueller lays out for consideration by others, namely Congress.

Dropping all decorum, Flood calls the report, a “prosecutorial curiosity” that’s “part ‘truth commission’ report and part law school exam paper”. His incivility was subsequently matched by Barr in the Senate hearing, when he said Mueller’s letter to him expressing dissatisfaction with Barr’s mischaracterization of 22 months of work was “a bit snitty and I think it was probably written by one of his staff people”.

Without Flood’s prior urging, Barr, serving as the president’s lawyer rather than the people’s lawyer, was already of like mind it’s safe to say. He has even said that the president cannot obstruct because it’s his justice department to do with as he pleases, no matter the special counsel regulations. In the hearing, Iowa Republican Chuck Grassley asked, “Was it Special Counsel responsibility to make a charging recommendation?”. Barr answered, “I think that if he felt that he shouldn’t go down the path of making a traditional prosecutive decision, then he shouldn’t have investigated” obstruction at all. No Volume 2.

This was an attempt to twist Mueller’s mandate into something it wasn’t. He was charged with investigating and submitting a report. Presidential hopeful Kamala Harris, herself a former prosecutor who would exhibit those skills in the hearing that had Barr floundering for answers, said emphatically:

“The report is a report. If you have it in front of you you will see the cover page of that 400-plus page document. It calls itself, because it is, “a report”…It is not a file of evidence. It is a report on an investigation.”

Barbara McQuade, a United States attorney until 2017, now a professor at the University of Michigan Law School, shows how Barr’s and Flood’s position is a deliberate perversion because it “couldn’t exist”. Barr…

“keeps using that phrase…prosecutors must charge or don’t charge. That is true in an ordinary case, but this is not an ordinary case, because what he’s also saying is you can’t charge the president…you can only clear the president. That’s the only thing you can do … so we can have a report that says, ‘nothing wrong. as you were'”.

no collusion, no crime

The other argument that Trump supporters have used to negate the obstruction evidence is “it’s not obstruction if there was no underlying crime”. Setting aside that Volume I is rife with Russian contacts and a willingness to benefit “from information stolen and released through Russian efforts”, that argument is wrong on the face of it as both law and logic. It hopes to obscure that a healthy percentage of investigations is to discover whether or not a crime has been committed. It implausibly says that, for lack of yet knowing the answer, such an investigation can be freely obstructed without its being obstruction.

That is the case here — Mueller’s team was looking for whether there was any conspiring or coordinating with Russian elements behind all the puzzling connections with Russians during the 2016 campaign. Imagine if Trump’s obstruction had been successful, that he had shut down the investigation, that this was ruled not obstruction because proof of a crime was not yet in hand. That gives license to obstruct at will, a law for dictators.

Which concords with what Attorney General Barr thinks, as he said in the May 1st Senate hearing:

“If in fact a proceeding was not well founded, if it was a groundless proceeding, if it was based on false allegations, the president does not have to sit there constitutionally and allow it to run its course. The president could terminate that proceeding, and it would not be a corrupt intent because he was being falsely accused.”

Dwell on that for a moment — from the highest legal officer in the land. A president is free to decide on his own that accusations against him are false. He can decide not to be investigated if he doesn’t want to be. And this was no slip of tongue. In the 19-page job application that signaled to Trump that he had finally found his Roy Cohn, Barr wrote,

“A president does not act ‘corruptly’ simply by acting on — even terminating — a matter that relates to his own conduct”.

Hillary Clinton showed up to call this “the road to tyranny”. How is it not?

bag man

The hearing revealed an attorney general for whom equivocate and prevaricate must be favorite words, but who had also done an unprofessional job in evaluating the report. Kamala Harris exposed that neither Barr, his deputy Rod Rosenstein, nor staff had read the evidence materials — notes, e-mail, witness testimony, interviews — that underlay Barr’s conclusion that there was no obstruction. “We accepted the statements in the report as the factual record,” Barr said. “We did not go underneath it to see whether or not they were accurate; we accepted it as accurate”. Ms Harris seemed amazed: “Yet you represented to the American public that the evidence was not, quote, sufficient, to support an obstruction of justice offense”, she responded, and asked if as attorney general he would ever accept a declination to prosecute from a U.S. attorney who said he had not reviewed all the evidence.

Harris had opened her inquiry by asking, “Has the president or anyone at the White House ever asked or suggested that you open an investigation of anyone”. Barr replied, “Um, I wouldn’t, I wouldn’t, um…”
Harris: “Yes or no”.
Barr: (long pause) “Could you repeat that question?”.
He then said he was having difficulty “grappling” with the word “suggested” and never did answer, clearly avoiding the choice of admitting that targeting is true or, by answering “no”, to be perjuring himself if the truth proves otherwise.
The evasion prompted Harris to ask the Inspector General of the Justice Department by letter to investigate whether the Attorney General “has received or acted upon requests or suggestions…to investigate the President’s perceived enemies”.

Another presidential aspirant, Sen. Cory Booker, uncovered that Barr, who had said “no collusion” four times in releasing the report, didn’t know about the most flagrant act of collusion of all, Paul Manafort’s repeated passing of the campaign’s own polling data to Konstantin Kilimnik, who the report said has ties to Russian intelligence services. “What information was shared?” Barr asked. “Polling data was shared, sir,” Booker replied. “It’s in the report. I can cite you the page.” “With who?” Barr asked. Did Barr read the report on which he passed judgment?

Four Democrats called for him to resign, to no effect of course. One of them, Sen. Mazie Hirono of Hawaii said in the hearing, “The American people know that you are no different from Rudy Giuliani or Kellyanne Conway or any of the other people who sacrificed their once-decent reputation for the grifter and liar who sits in the Oval Office”.

She could have added the liar that sits in the attorney general’s office. In a previous hearing, Barr had lied to Congress. Representative Charlie Crist (D-Fla) brought up the Mueller team’s “frustration” with Barr’s four-page summary of their report. Crist asked, “Do you know what they’re referencing with that?”. Barr had received Mueller’s letter of chastisement before testifying, and knew full well that it said his summarization “did not fully capture the context, nature, and substance of this Office’s work and conclusions”, yet to the question of whether he knew why Mueller was discontented, Barr answered, “No, I don’t”.

House Speaker Nancy Pelosi said, “He lied to Congress” and said it again for good measure. “Nobody is above the law. Not the president of the United States and not the attorney general”. Her comments were called by Kerri Kupec at the Department of Justice “reckless, irresponsible, and false”, the last apparently in the Groucho Marx sense of “Who are you going to believe, Kupec or your own ears?”.

whose baby?

Barr wanted to put Mueller in his place (except it’s a place well above his own in the public’s view), referring to him as “Bob” in a Senate hearing in a sign of disrespect to display dominance: “You know, Bob Mueller”, using the special counsel’s first name in a sign of disrespect and to display dominance,

“is the equivalent of a U.S. attorney. He was exercising the powers of the attorney general, subject to the supervision of the attorney general. He’s part of the Department of Justice. His work concluded when he sent his report to the attorney general. At that point, it was my baby. It was my decision how and when to make it public, not Bob Mueller’s”.

Neal Katyal has been the 2nd level Solicitor General of the United States, but more notably is fresh from arguing his 39th case before the Supreme Court. His view differing from Barr’s as to whose baby it is and who decides to make it public carries weight, for Katyal was the one who drafted the special counsel regulations in 1998-99. Barr has evidently not read them. Katyal says that inquiries such as Mueller’s “have one ultimate destination: Congress. That is where this process is going, and has to go”. For the attorney general to contend that the report is his “baby” and that he has sole discretion over its release does not square with the Special Counsel Regulations which mention Congress 91 times.

Mueller understood that Justice rules prevented him from indicting; Barr’s duplicity was to undercut Mueller by saying no, he wasn’t constrained by that guideline, so that Barr could arrange for himself to close out the case of obstruction. In a New York Times piece, Katyal says, “Mr. Barr tried to spin these facts” and “he hid Mr. Mueller’s complaints, which were delivered to him in writing more than a month ago”. Barr testified that he “overrode” the regulations to release the report to the public; Katyal says he overrode nothing; the special counsel regulations allow public release. Barr “put his thumb on the scale” by “pre-clearing” the president in advance of the report’s submission to Congress. “The attorney general was misleading through and through, not just about the investigation, but about the special counsel regulations themselves.”

Katyal acknowledges that it is difficult to get around an attorney general lodged in the executive branch. In the expectation that there would someday be a nefarious attorney general who interfered with an investigation or its release, the regulations have “break glass in case of emergency” option (Katyal’s words) whereby the special counsel can leave the Justice Department and testify before Congress.

That moment is eagerly awaited.

May 10 2019 | Posted in Governance | Read More »