May 29, 2019

Congress Still Has Questions for Mueller

Special Prosecutor Robert Mueller went before reporters today and had important words to say about the report of his recently completed investigation into Russian interference in our 2016 election and interference with that investigation by the White House. He had two apparent goals in making his unanticipated public statement. First, he intended to emphasize what the report of his team actually says. This includes asserting that his team did not exonerate Donald Trump of obstruction of justice and was prevented by Department of Justice policy from making such a charge even if it were logically appropriate. Second, Mueller wanted to say that his testifying before Congress would not lead him to disclose anything that was not said in his report or in his statement today.

What Mueller made clear, if not totally explicit, is that Russian interference in our election was a very serious matter that calls for a legislative response from Congress. Likewise, it was clear from his remarks that he believes that Congress needs to perform its constitutional duty and embark on serious consideration of impeaching the president.

Indeed, Mueller answered—virtually, if not actually—many questions he might be expected to be asked were he to testify before Congress. In particular, he skirted the most obvious question while suggesting that the answer is in the affirmative, namely, would you have indicted the president were it not for DoJ policy? Nonetheless, there are questions of interested that Mueller could answer that have not been answered either in his report or in his lone public statement:

  1. Did the Mueller team investigate possible financial crimes by the president or his family members? Was this matter considered beyond his remit?
  2. Why did he not insist on interviewing the president himself and members of his family?
  3. What happened to the counterintelligence investigation begun by the FBI? Has it concluded? Is it ongoing?
  4. Did the investigation end when Mueller felt he had accomplished what was asked of him, or was he pressed to end it by Attorney General Bob Barr?
No doubt, there are other questions that members of Congress would like to ask Robert Mueller. Will they get a chance? Perhaps not, although Congress could compel an appearance by the former special prosecutor. In the meantime, Mueller has given Congress two important tasks to pursue.

Roe vs. the Radical Right

With the assent of Neil Gorsuch to the Supreme Court, the radical forced-birth, anti-woman right wing of the Republican Party has changed its strategy for re-criminalizing abortion in this country. No longer content to restrict abortion at the margins and with a presumptively misogynous high court in place, those zealots who would control women’s reproductive lives have decided to go for broke. They are seeking a complete reversal of Roe v. Wade.

The strategy will fail. Recently passed laws in Alabama and elsewhere are intended to outlaw abortion, either literally or effectively. In light of Roe and subsequent related decisions, these laws are clearly unconstitutional. They will be summarily struck down when challenged, and trial court decisions will be affirmed on appeal.

Rabid red-state attorneys general will, of course, appeal their cases to the Supreme Court, but the court has no obligation to hear them. I think it likely that the court will reject the appeals and allow decisions of lower courts to stand. The recently passed laws present no new issues to the court for adjudication that are not settled by Roe itself. Unless the court intends to overturn Roe, it would be a waste of time to accept an appeal only to maintain the status quo.

Undoubtedly, the current Supreme Court is a conservative court, but the justices are not above considering public opinion. Overturning Roe, although it would cheer some right-wing radicals, it not desired by most citizens even though there is broad consensus that the right to choose to have an abortion should have some reasonable limits. Moreover, in Roe, the court found a constitutional right to privacy in its decision, and, in the current climate, the court’s asserting that citizens have no such right could unleash a firestorm of protest. It is widely believed that Chief Justice Roberts is an institutionalist and would fear that overturning a longstanding decision like Roe would risk harming the court’s reputation as an impartial adjudicator of the law.

At least one recent decision suggests that the Supreme Court continues to support Roe while allowing states to enact certain abortion-related regulations. In Box v. Planned Parenthood of Indiana and Kentucky, the court allowed Indiana regulations on the disposal of fetal tissue removed in an abortion to stand, but it struck down limitations on why a woman may choose to have an abortion. In general, of course, although the Supreme Court can overturn longstanding decisions, it tends to avoid doing so except for compelling reasons. Recently appointed justices have, however, described Roe as “settled law,” though perhaps with questionable sincerity.

That said, it is hardly clear that Roe is safe long-term. Republican continue to select conservatives for judicial appointments, and those candidates have lately begun refusing to answer the question “was Brown v. Board of Education wrongly decided?” This is a scary situation. (I think the question should be about Plessy v. Ferguson or Dred Scott v. Sandford, to which a failure to answer or a positive answer should clearly be disqualifying.) Is the latest cohort of judges ready to completely overturn our body of law? Time will tell.

Meanwhile, although the high court can change its mind, for now, those who would force women to carry every pregnancy to term are going to be disappointed. Roe is not seriously challenged by the latest batch of radical state laws.

May 26, 2019

Age and the Democratic Candidates

Whatever virtues or flaws one might attribute to particular presidential aspirants, one characteristic that must be considered when selecting a candidate is age. Two of the leading Democratic presidential hopefuls are, to put it delicately, old. Joe Biden was born November 20, 1942; Bernie Sanders was born October 8, 1941. Were one of them to be elected president in 2020, he would be 78 or 79 years old, respectively, when inaugurated and would become the oldest inaugurated president. (Donald Trump currently holds that record, having been 70 on inauguration day.) Were that person to serve two terms—Democrats surely want the next president to be a Democrat and to be re-elected in 2024—he would be 86 or 87 years old, respectively, upon leaving office. At such time, his age would be greater than his actuarial life expectancy.

It need hardly be said that, as one advances in age, one is increasingly likely to suffer medical issues, serious disabilities, or death. Were Democrats to select either Biden or Sanders as their standard bearer in 2020, the selection of a vice-presidential candidate would become more important than usual, as that person would have a significant likelihood of becoming President of the United States.

I believe that, on the basis of age alone, neither Biden nor Sanders is a wise (and perhaps not even a viable) choice as the Democratic nominee.

And as much as I like Elizabeth Warren, she, having been born on June 22, 1949, is only three years younger than Donald Trump. If she assumed office on January 20, 2021, even she would displace the incumbent as the oldest president upon inauguration.

Even were Republicans to ignore the age factor during the 2020 campaign, should Biden, Sanders, or even Warren gets the Democratic nomination, Democrats would still be making a serious error in selecting such an elderly candidate.

Democrats have a gaggle of younger, attractive presidential aspirants. They should select one of them as their standard bearer.

May 21, 2019

Abortion as Murder

Those who assert that abortion is murder are hypocrites if they do not support severe penalties for women who have abortions.

If I pay a contract killer to murder someone, and my role in the killing is discovered, I am almost certainly going to prison. If one believes that abortion is murder, how is this situation different from a woman’s hiring an abortionist? Has the woman no responsibility for initiating what is viewed as a crime?

Those who would only punish the doctor who performs an abortion either do not really believe abortion is murder, or they lack the moral clarity or courage to recognize and act upon the full implications of their belief. In either case, their claim to occupy the high moral ground is spurious.

May 17, 2019

Trump, Iran, and the World

Donald Trump said yesterday that he doesn’t want war with Iran; he is only interested in keeping Iran from getting nuclear weapons.

Of course, the agreement with Iran that the president was so eager to get out of was designed to keep Iran from developing nuclear weapons. Moreover, the agreement was working well and was accomplishing its key objective.

What Trump didn’t like about the Joint Comprehensive Plan of Action (JCPOA) was its multilateral nature. We have a president who hates co-operative agreements involving multiple states, whether they be NAFTA, the TTP, the JCPOA, the Paris Accord, or even the United Nations itself.

A former master of his own business empire, President Trump wants analogous control over U.S. agreements with other nations. He abhors the compromises required to obtain consensus among multiple partners, irrespective of the benefits that might accrue from an agreement. Trump’s need for control is obvious, too, in his domestic role as leader of the United States. Somehow, Donald Trump never learned those lessons in kindergarten about getting along with others.

Multilateral co-operation among nations has made the post-WWII world safe, prosperous, and largely democratic. Although the U.S. has been a key player in its creation, the Pax Americana was not the result of putting the United States first in all things, as Trump would now have it. The world was a better place because we actively sought a better world for everyone, not simply a world dominated by and for the United States of America. Donald Trump is now determined to destroy that world.

It will be up to the next president—one hopes a Democratic president—to rebuild the safe, prosperous, democratic world that Donald Trump is destroying.